CASE PAGE NUMBER

1. Salita v Magtolis 2-4

2. Agcanas v Mercado 5-6
3. Santos v Liwag 7
4. Benguet Electric v NLRC 8-12
5. Alimpoos v CA 13-20
6. Magno v CA 21-22
7. Adamson Ozanam Education Institution v 23-25
Adamson Faculty
8. Aramburo v CA 26-29
9. Solar Team Entertainment v Ricafort 30-37
10. Carriaga, Jr. v Malaya 38-40
11. Montalban v Maximo 41-47
12. Bello v Ubo 48-51
13. Laus v CA 52-60
14. Valmonte v CA 61-65
15. Citizens Surety v Melencio-Herrera 66-68
16. Kawasaki Port Service Corp v Amores 69-72

1. 233 s 100
2. 7 s 688
3. 101 s 327
4. 209 s 55
5. 106 s 159
6. 152 s 555
7. 179 s 279
8. 101 s 146
9. 293 s 661 w separate and dissenting opinions
10. 143 s 441
11. 22 s 1070
12. 117 s 91
13. 219 s 688
14. 252 s 92
15. 318 s 369
16. 199 s 230
G.R. No. 106429 June 13, 1994
JOSELITA SALITA, petitioner,
vs.
HON. DELILAH MAGTOLIS, in her capacity as Judge of the RTC, Quezon City, Br. 107, and
ERWIN ESPINOSA, respondents.
Alfredo F. Tadiar for petitioner.
Yolanda, Quisumbing-Javellana & Associates for private respondent.

BELLOSILLO, J.:
Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman Catholic Church in Ermita,
Manila, on 25 January 1986. A year later, their union turned sour. They separated in fact in 1988.
Subsequently, Erwin sued for annulment on the ground of Joselitas psychological incapacity.
The issue before us however is not the scope nor even the interpretation of Art. 36 of the Family
Code. 1 Rather, the issue is the sufficiency of the allegations in the petition for annulment of marriage
and the subsequent bill of particulars filed in amplification of the petition.
The petition for annulment was filed before the Regional Trial Court of Quezon City on 7 January
1992. Therein it is alleged that "[s]ometime in 1987, petitioner came to realize that respondent was
psychologically incapacitated to comply with the essential marital obligations of their marriage, which
incapacity existed at the time of the marriage although the same became manifest only
thereafter." 2 Dissatisfied with the allegation in the petition, Joselita moved for a bill of particulars
which the trial court granted. 3 Subsequently, in his Bill of Particulars, Edwin specified that
. . . at the time of their marriage, respondent (Joselita Salita) was psychologically incapacitated to
comply with the essential marital obligations of their marriage in that she was unable to understand
and accept the demands made by his profession that of a newly qualified Doctor of Medicine
upon petitioners time and efforts so that she frequently complained of his lack of attention to her even
to her mother, whose intervention caused petitioner to lose his job.
Still Joselita was not contented with the Bill of Particulars. She argued that the "assertion (in the Bill of
Particulars) is a statement of legal conclusion made by petitioners counsel and not an averment
of ultimate facts, as required by the Rules of Court, from which such a conclusion may properly be
inferred . . . ." 4 But finding the questioned Bill of Particulars adequate, the trial court issued an order
upholding its sufficiency and directing Joselita to file her responsive pleading.
Joselita was not convinced. She filed a petition for certiorari with us. However, we referred her
petition to the Court of Appeals for resolution.
On 21 July 1992, the Court of Appeals denied due course to her petition thus
In the case under consideration, Espinosa has amplified Salitas alleged psychological incapacity in
his bill of particulars . . .
In our view, the aforesaid specification more than satisfies the Rules requirement that a complaint
must allege the ultimate facts constituting a plaintiffs cause of action. To require more details thereof,
to insist on a specification of Salitas particular conduct or behavior with the corresponding
circumstances of time, place and person indicating her alleged psychological incapacity would be to
ask for information on evidentiary matters. To obtain evidentiary details, Salita may avail herself of the
different modes of discovery provided by the Rules of Court
(Rules 24 to 28).
Whether Espinosas averments in his bill of particulars constitute psychological incapacity in the
contemplation of the Family Code is a question that may be resolved in a motion to dismiss or after
trial on the merits of the case, not in a motion for bill of particulars. And certainly, that matter cannot
be resolved in the present petition. 5
Hence, the instant petition for review on certiorari filed by Joselita Salita questioning the Resolution of
the Court of Appeals denying due course to her petition.
Petitioner insists that the allegations in the Bill of Particulars constitute a legal conclusion, not an
averment of facts, and fail to point out the specific essential marital obligations she allegedly was not
able to perform, and thus render the Bill of Particulars insufficient if not irrelevant to her husbands
cause of action. She rationalizes that her insistence on the specification of her particular conduct or
behavior with the corresponding circumstances of time, place and person does not call for information
on evidentiary matters because without these details she cannot adequately and intelligently prepare
her answer to the petition.
Private respondent on the other hand believes that his allegations in the Bill of Particulars constitute
the ultimate facts which the Rules of Court requires at this point. He defines ultimate facts as
. . . important and substantial facts which either directly form the basis of the primary right and duty,
or which directly make upon the wrongful acts or omissions of the defendant. The term does not refer
to the details of probative matter or particulars of evidence by which these material elements are to
be established. It refers to principal, determinate facts upon the existence of which the entire cause of
action rests. 6
Ultimate facts are conclusions drawn from intermediate and evidentiary facts, or allegations of mixed
law and fact; they are conclusions from reflection and natural reasoning on evidentiary fact. The
ultimate facts which are to be pleaded are the issuable, constitutive, or traversible facts essential to
the statement of the cause of action; the facts which the evidence on the trial will prove, and not the
evidence which will be required to prove the existence of those facts . . . 7
Private respondent further argues that "[c]onclusions of law and evidentiary matters need not be
stated in the complaint. The rules of pleading limit the statement of the cause of action only to such
operative facts as would give rise to the right of action of the plaintiff to obtain relief against the
wrongdoer. The details of probative matter or particulars of evidence, statements of law, inferences
and arguments need not be stated." 8
In a nutshell, the ultimate question is whether the Bill of Particulars submitted by herein respondent is
of sufficient definiteness or particularity as to enable herein petitioner to properly prepare her
responsive pleading or for trial.
A complaint only needs to state the "ultimate facts constituting the plaintiffs cause or causes of
action." 9 Ultimate facts has been defined as "those facts which the expected evidence will
support." 10 As stated by private respondent, "[t]he term does not refer to the details of probative
matter or particulars of evidence by which these material elements are to be established." It refers to
"the facts which the evidence on the trial will prove, and not the evidence which will be required to
prove the existence of those facts." And a motion for bill of particulars will not be granted if the
complaint, while not very definite, nonetheless already states a sufficient cause of action. 11 A motion
for bill of particulars may not call for matters which should form part of the proof of the complaint upon
trial. Such information may be obtained by other means. 12
We sustain the view of respondent Court of Appeals that the Bill of Particulars filed by private
respondent is sufficient to state a cause of action, and to require more details from private respondent
would be to ask for information on evidentiary matters. Indeed, petitioner has already been
adequately apprised of private respondents cause of action against her thus
. . . . (she) was psychologically incapacitated to comply with the essential marital obligations of their
marriage in that she was unable to understand and accept the demands made by his profession
that of a newly qualified Doctor of Medicine upon petitioners time and efforts so that she frequently
complained of his lack of attention to her even to her mother, whose intervention caused petitioner to
lose his job.
On the basis of the aforequoted allegations, it is evident that petitioner can already prepare her
responsive pleading or for trial. Private respondent has already alleged that "she (petitioner) was
unable to understand and accept the demands made by his profession . . . upon his time and efforts .
. . " Certainly, she can respond to this. To demand for more details would indeed be asking for
information on evidentiary facts facts necessary to prove essential or ultimate facts. 13 For sure,
the additional facts called for by petitioner regarding her particular acts or omissions would be
evidentiary, and to obtain evidentiary matters is not the function of a motion for bill of particulars. 14
We distinguish the instant case from Tantuico, Jr. v. Republic 15 where we said
Furthermore, the particulars prayed for such as names of persons, names of corporations, dates,
amounts involved, a specification of property for identification purposes, the particular transactions
involving withdrawals and disbursements, and a statement of other material facts as would support
the conclusions and inferences in the complaint, are not evidentiary in nature. On the contrary, those
particulars are material facts that should be clearly and definitely averred in the complaint in order
that the defendant may, in fairness, be informed of the claims made against him to the end that he
may be prepared to meet the issues at the trial.
The aforementioned pronouncement cannot apply to the instant case. That ruling involves alleged
"misappropriation and theft of public funds, plunder of the nations wealth, extortion, blackmail,
bribery, embezzlement, and other acts of corruption, betrayal of public trust and brazen abuse of
power." The respondents therein pray for reconveyance, reversion, accounting, restitution and
damages. There, the alleged illicit acts should be fully documented. The instant case, on the other
hand, concerns marital relationship. It would be unreasonable, if not unfeeling, to document each and
every circumstance of marital disagreement. True, the complaining spouse will have to prove his
case, but that will not come until trial begins.
Consequently, we have no other recourse but to order the immediate resumption of the annulment
proceeding which have already been delayed for more than two years now, even before it could
reach its trial stage. Whether petitioner is psychologically incapacitated should be immediately
determined. There is no point in unreasonably delaying the resolution of the petition and prolonging
the agony of the wedded couple who after coming out from a storm still have the right to a renewed
blissful life either alone or in the company of each other.
A word on Art. 36 of the Family Code. 16 We do not see the need to define or limit the scope of the
provision. Not in this case, at least. For, we are not called upon to do so, the actual controversy being
the sufficiency of the bill of particulars. To interpret the provision at this juncture would be to give
an obiter dictum which is ill-timed. Besides, it appears that petitioner in her memorandum has
demonstrated a good grasp of what Art. 36 actually covers. Suffice it to say that Mme. Justice
Sempio-Diy, formerly of the Court of Appeals and a member of the Civil Code Revision Committee
that drafted the Family code, explains
The Committee did not give any examples of psychological incapacity for fear that the giving of
examples would limit the applicability of the provision under the principle of ejusdem generis. Rather,
the Committee would like the judge to interpret the provision on a case-to-case basis, guided by
experience, the findings of experts and researchers in psychological disciplines, and by decisions of
church tribunals which, although not binding on the civil courts, may be given persuasive effect since
the provision was taken from Canon Law. 17
WHEREFORE, there being no reversible error, the instant petition is DENIED and the questioned
Resolution of respondent Court of Appeals dated 21 July 1992 is AFFIRMED.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.
G.R. No. L-15808 April 23, 1963
FAUSTA AGCANAS, JUAN MIGUEL, JUANITA MIGUEL, assisted by her husband ULPIANO
PASION,
assisted by her husband JUAN PASCUAL, plaintiffs-appellees,
vs.
BRUNO MERCADO and ANTONIO DASALLA, defendants-appellants.
Melanio T. Singson for plaintiffs-appellees.
Adriano D. Dasalla and Antonio F. Dasalla for defendants-appellants.
MAKALINTAL, J.:
Appeal by defendants from the Court of First Instance of Isabela on a question of law.
On November 25, 1956 plaintiffs filed this action to recover portions of a parcel of land in Isabela, and
damages. Under date of December 4, 1956 defendants filed a motion for a bill of particulars, with
notice of hearing on December 8, but since the motion was actually received in court only on
December 12 the court set it for hearing on December 22. On December 17, however, defendants
filed a motion to dismiss the complaint, with a prayer that consideration of their motion for a bill of
particulars be held in abeyance pending resolution of their motion to dismiss. On December 22, 1956,
the date set by the court for the hearing of the motion for a bill of particulars and by defendants for the
hearing of their motion to dismiss, the court issued an order postponing "consideration" of both
motions to December 29. On March 7, 1957 the court denied the motion to dismiss and ordered
defendants "to answer the complaint within the reglementary period provided for by the Rules of
Court." Hearing of the case on the merits was set for October 29, 1957, notice of which was duly
received by defendants. Defendants not having filed their answer, plaintiffs, on October 17, 1957,
moved to have them declared in default. On the same day the court issued the order of default
together with another order commissioning the clerk of court to receive plaintiff's evidence. On
October 21, 1957 defendants moved to cancel the hearing scheduled for October 29, on two grounds
one of which was that their motion for a bill of particulars had not yet been resolved. The motion to
cancel was set for hearing on October 26, 1957. When defendants arrived in court on that day they
learned that an order of default had been issued, so they immediately filed a motion asking that the
same be set aside that their pending motion for a bill of particulars be resolved and that they be given
a reasonable period thereafter within which to file their answer to the complaint. On December 13,
1957 the court denied the motion and rendered its decision in favor of plaintiffs and against
defendants. On January 4, 1958 it denied defendants' motion for reconsideration of the order of
denial. On January 24, defendants filed their record on appeal (to this Court from the order of
December 13, 1957), but as they subsequently filed a petition for relief from the judgment by default,
they asked that consideration and approval of their record on appeal be held in abeyance until said
petition had been resolved. The request was granted. Defendant's petition for relief, which was filed
on January 28, 1958, was denied on March 21, as was also, on September 20, 1958 their motion for
reconsideration of the order of denial. On October 4, 1958 the court denied likewise their motion for a
writ of preliminary injunction to restrain execution of the judgment by default. Hence, this appeal.
Appellants' eighteen assignments of error may be reduced to a single proposition: Whether or not
upon denial of a defendants' motion to dismiss the reglementary period within which to file an answer
resumes running even though the motion for a bill of particulars of the same defendants is still
pending and unresolved.
Both a motion to dismiss and a motion for a bill of particulars interrupt the time to file a responsive
pleading. In the case of a motion to dismiss, the period starts running against as soon as the movant
receives a copy of the order of denial.1 In the case of a motion for a bill of particulars, the suspended
period shall continue to run upon service on the movant of the bill of particulars, if the motion is
granted, or of the notice of its denial, but in any event he shall have not less than five days within
which to file his responsive pleading.2
When appellants filed a motion to dismiss they requested that resolution of their previous motion for a
bill of particulars be held in abeyance. This was but practical because if the court had granted the
motion to dismiss, there would have been no need for a bill of particulars. Resolution of the motion for
the purpose was necessary only in the event that court should deny, as it did, the motion to dismiss,
in which case the period to file an answer remained suspended until the motion for a bill of particulars
is denied or, if it is granted, until the bill is served on the moving party.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove
their case not covered by this stipulation of facts. 1wph1.t
The lower court deemed appellants to have "tacitly waived their right to push through the hearing of
the motion for bill of particulars," because of their failure to set it for hearing or to ask the clerk of court
to calendar it after denial of the motion to dismiss. Appellants did set the motion for hearing on
December 8, 1956, although it was not heard on that day because it arrived in court only on
December 12. Thereafter they did not have to reset it, as the clerk of court scheduled it for hearing on
December 22, 1956. And on that day the court issued an order that "the consideration of the motion
to dismiss, as well as the bill of particulars, is hereby postponed to December 29, 1956." As to
whether or not both motions were actually heard on December 29, does not appear of record. But
heard or not, the motions should be considered submitted, and it was the clear duty of the court to
resolve the motion for a bill of particulars, as it did the motion to dismiss. No action having been taken
thereon until the present, the period to answer has not yet expired. The lower court, therefore, erred
in declaring appellants in defaults and in taking all the subsequent actions it did in the case.
The order of default issued and the decision rendered by the trial court are set aside and the case is
remanded for further proceedings, pursuant to the Rules. Costs against plaintiffs-appellees.
Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon and
Regala, JJ., concur.
G.R. No. L-24238 November 28, 1980
JOSE SANTOS, plaintiff-appellant,
vs.
LORENZO J. LIWAG, defendant-appellee.

CONCEPCION, JR., J.:

Appeal from the order of the Court of First Instance of Manila, dated October 17, 1964, which
dismissed the, complaint filed in Civil Case No. 57282, for failure of the plaintiff to submit a bill of
particulars within 10 days from notice thereof.
The record shows that on June 8, 1964 the appellant -Jose Santos filed a complaint against Lorenzo
J. Liwag with the Court of First Instance of Manila, docketed therein as Civil Case No. 57282, seeking
the annulment of certain documents, attached to the complaint and marked as Annexes "A", "B", and
"C", as having been executed by means of misrepresentations, machination, false pretenses, threats,
and other fraudulent means, as well as for damages and costs. 1
Claiming that the allegations in the complaint are indefinite and uncertain, as well as conflicting, the
defendant filed a motion tion on July 4, 1964, asking the trial court that the plaintiff be ordered to
submit a more definite statement or bill of particulars on certain allegations of the complaint, as well
as the facts constituting the misrepresentations, machinations, and frauds employed by the defendant
in the execution of the documents in question in order that he could be well informed of the charges
filed against him, for him to prepare an intelligent and proper pleading necessary and appropriate in
the premises. 2
The plaintiff opposed the motion saying that the allegations in his complaint are sufficient and contain
ultimate facts con- constituting his causes of action and that the subject of the defendant's motion is
evidentiary in nature. 3
The trial court, however, granted the motion and directed the plaintiff "to submit a bill of particulars
with respect to the paragraphs specified in defendant's motion", 4 and when the plaintiff failed to
comply with the order, the court, acting upon previous motion of the defendant, 5 dismissed the
complaint with costs against the plaintiff. 6 Hence, the present appeal.
We find no merit in the appeal. The allowance of a motion for a more definite statement or bill of
particulars rests within the sound judicial discretion of the court and, as usual in matters of a
discretionary nature, the ruling of the trial court in that regard will not be reversed unless there has
been a palpable abuse of discretion or a clearly erroneous order. In the instant case, the complaint is
without doubt imperfectly drawn and suffers from vagueness and generalization to enable the
defendant properly to prepare a responsive pleading and to clarify issues and aid the court In an
orderly and expeditious disposition tion in the case.
The present action is one for the annulment of documents which have been allegedly executed by
reason of deceit, machination, false pretenses, misrepresentation, threats, and other fraudulent
means. Deceit, machination, false pretenses, misrepresentation, and threats, however, are largely
conclusions of law and mere allegations thereof without a statement of the facts to which such terms
have reference are not sufficient The allegations must state the facts and circumstances from which
the fraud, deceit, machination, false pretenses, misrepresentation, and threats may be inferred as a
conclusions In his complaint, the appellant merely averred that all the documents sought to be
annulled were all executed through the use of deceits, machination, false pretenses,
misrepresentations, threats, and other fraudulent means without the particular-facts on which alleged
fraud, deceit, machination, or misrepresentations are predicated. Hence, it was proper for the trial
court to grant the defendant's motion for a bill of particulars, and when the plaintiff failed to comply
with the order, the trial court correctly dismissed the complaint. 7
WHEREFORE, the judgment appealed from should be, as it is hereby, affirmed. Without
pronouncement as to costs in this instance.
SO ORDERED.
Barredo (Chairman), Aquino, Abad Santos and De Castro, * JJ, concur.
G.R. No. 89070 May 18, 1992
BENGUET ELECTRlC COOPERATIVE, INC., petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, PETER COSALAN and BOARD OF DIRECTORS
OF BENGUET ELECTRIC COOPERATIVE, INC., * respondents.
Raymundo W. Celino for respondent Peter Cosalan.
Reenan Orate for respondent Board of Directors of BENECO.

FELICIANO, J.:
Private respondent Peter Cosalan was the General Manager of Petitioner Benguet Electric
Cooperative, Inc. ("Beneco"), having been elected as such by the Board of Directors of Beneco, with
the approval of the National Electrification Administrator, Mr. Pedro Dumol, effective 16 October
1982.
On 3 November 1982, respondent Cosalan received Audit Memorandum No. 1 issued by the
Commission on Audit ("COA"). This Memorandum noted that cash advances received by officers and
employees of petitioner Beneco in the amount of P129,618.48 had been virtually written off in the
books of Beneco. In the Audit Memorandum, the COA directed petitioner Beneco to secure the
approval of the National Electrification Administration ("NEA") before writing off or condoning those
cash advances, and recommended the adoption of remedial measures.
On 12 November 1982, COA issued another Memorandum Audit Memorandum No. 2
addressed to respondent Peter Cosalan, inviting attention to the fact that the audit of per diems and
allowances received by officials and members of the Board of Directors of Beneco showed
substantial inconsistencies with the directives of the NEA. The Audit Memorandum once again
directed the taking of immediate action in conformity with existing NEA regulations.
On 19 May 1983, petitioner Beneco received the COA Audit Report on the financial status and
operations of Beneco for the eight (8) month period ended 30 September 1982. This Audit Report
noted and enumerated irregularities in the utilization of funds amounting to P37 Million released by
NEA to Beneco, and recommended that appropriate remedial action be taken.
Having been made aware of the serious financial condition of Beneco and what appeared to be
mismanagement, respondent Cosalan initiated implementation of the remedial measures
recommended by the COA. The respondent members of the Board of Beneco reacted by adopting a
series of resolutions during the period from 23 June to 24 July 1984. These Board Resolutions
abolished the housing allowance of respondent Cosalan; reduced his salary and his representation
and commutable allowances; directed him to hold in abeyance all pending personnel disciplinary
actions; and struck his name out as a principal signatory to transactions of petitioner Beneco.
During the period from 28 July to 25 September 1984, the respondent Beneco Board members
adopted another series of resolutions which resulted in the ouster of respondent Cosalan as General
Manager of Beneco and his exclusion from performance of his regular duties as such, as well as the
withholding of his salary and allowances. These resolutions were as follows:
1. Resolution No. 91-4 dated 28 July 1984:
. . . that the services of Peter M. Cosalan as General Manager of BENECO is terminated upon
approval of the National Electrification Administration;
2. Resolution No. 151-84 dated September 15, 1984;
. . . that Peter M. Cosalan is hereby suspended from his position as General Manager of the Benguet
Electric Cooperative, Inc. (BENECO) effective as of the start of the office hours on September 24,
1984, until a final decision has been reached by the NEA on his dismissal;
. . . that GM Cosalan's suspension from office shall remain in full force and effect until such
suspension is sooner lifted, revoked or rescinded by the Board of Directors; that all monies due him
are withheld until cleared;
3. Resolution No. 176-84 dated September 25, 1984;
. . . that Resolution No. 151-84, dated September 15, 1984 stands as preventive suspension for GM
Peter M. Cosalan. 1
Respondent Cosalan nevertheless continued to work as General Manager of Beneco, in the belief
that he could be suspended or removed only by duly authorized officials of NEA, in accordance with
provisions of P.D. No, 269, as amended by P.D. No. 1645 (the statute creating the NEA, providing for
its capitalization, powers and functions and organization), the loan agreement between NEA and
petitioner Beneco 2 and the NEA Memorandum of 2 July 1980. 3 Accordingly, on 5 October and 10
November 1984, respondent Cosalan requested petitioner Beneco to release the compensation due
him. Beneco, acting through respondent Board members, denied the written request of respondent
Cosalan.
Respondent Cosalan then filed a complaint with the National Labor Relations Commission ("NLRC")
on 5 December 1984 against respondent members of the Beneco Board, challenging the legality of
the Board resolutions which ordered his suspension and termination from the service and demanding
payment of his salaries and allowances. On 18 February 1985, Cosalan amended his complaint to
implead petitioner Beneco and respondent Board members, the latter in their respective dual
capacities as Directors and as private individuals.
In the course of the proceedings before the Labor Arbiter, Cosalan filed a motion for reinstatement
which, although opposed by petitioner Beneco, was granted on 23 October 1987 by Labor Arbiter
Amado T. Adquilen. Petitioner Beneco complied with the Labor Arbiter's order on 28 October 1987
through Resolution No. 10-90.
On 5 April 1988, the Labor Arbiter rendered a decision (a) confirming Cosalan's reinstatement; (b)
ordering payment to Cosalan of his backwages and allowances by petitioner Beneco and respondent
Board members, jointly and severally, for a period of three (3) years without deduction or qualification,
amounting to P344,000.00; and (3) ordering the individual Board members to pay, jointly and
severally, to Cosalan moral damages of P50,000.00 plus attorney's fees of ten percent (10%) of the
wages and allowances awarded him.
Respondent Board members appealed to the NLRC, and there filed a Memorandum on Appeal.
Petitioner Beneco did not appeal, but moved to dismiss the appeal filed by respondent Board
members and for execution of judgment. By this time, petitioner Beneco had a new set of directors.
In a decision dated 21 November 1988, public respondent NLRC modified the award rendered by the
Labor Arbiter by declaring that petitioner Beneco alone, and not respondent Board members, was
liable for respondent Cosalan's backwages and allowances, and by ruling that there was no legal
basis for the award of moral damages and attorney's fees made by the Labor Arbiter.
Beneco, through its new set of directors, moved for reconsideration of the NLRC decision, but without
success.
In the present Petition for Certiorari, Beneco's principal contentions are two-fold: first, that the NLRC
had acted with grave abuse of discretion in accepting and giving due course to respondent Board
members' appeal although such appeal had been filed out of time; and second, that the NLRC had
acted with grave abuse of discretion amounting to lack of jurisdiction in holding petitioner alone liable
for payment of the backwages and allowances due to Cosalan and releasing respondent Board
members from liability therefor.
We consider that petitioner's first contention is meritorious. There is no dispute about the fact that the
respondent Beneco Board members received the decision of the labor Arbiter on 21 April 1988.
Accordingly, and because 1 May 1988 was a legal holiday, they had only up to 2 May 1988 within
which to perfect their appeal by filing their memorandum on appeal. It is also not disputed that the
respondent Board members' memorandum on appeal was posted by registered mail on 3 May 1988
and received by the NLRC the following day. 4 Clearly, the memorandum on appeal was filed out of
time.
Respondent Board members, however, insist that their Memorandum on Appeal was filed on time
because it was delivered for mailing on 1 May 1988 to the Garcia Communications Company, a
licensed private letter carrier. The Board members in effect contend that the date of delivery to Garcia
Communications was the date of filing of their appeal memorandum.
Respondent Board member's contention runs counter to the established rule that transmission
through a private carrier or letter-forwarder instead of the Philippine Post Office is not a
recognized mode of filing pleadings. 5 The established rule is that the date of delivery of pleadings to
a private letter-forwarding agency is not to be considered as the date of filing thereof in court, and that
in such cases, the date of actual receipt by the court, and not the date of delivery to the private
carrier, is deemed the date of filing of that pleading. 6
There, was, therefore, no reason grounded upon substantial justice and the prevention of serious
miscarriage of justice that might have justified the NLRC in disregarding the ten-day reglementary
period for perfection of an appeal by the respondent Board members. Accordingly, the applicable rule
was that the ten-day reglementary period to perfect an appeal is mandatory and jurisdictional in
nature, that failure to file an appeal within the reglementary period renders the assailed decision final
and executory and no longer subject to review. 7 The respondent Board members had thus lost their
right to appeal from the decision of the Labor Arbiter and the NLRC should have forthwith dismissed
their appeal memorandum.
There is another and more compelling reason why the respondent Board members' appeal should
have been dismissed forthwith: that appeal was quite bereft of merit. Both the Labor Arbiter and the
NLRC had found that the indefinite suspension and termination of services imposed by the
respondent Board members upon petitioner Cosalan was illegal. That illegality flowed, firstly, from the
fact that the suspension of Cosalan was continued long after expiration of the period of thirty (30)
days, which is the maximum period of preventive suspension that could be lawfully imposed under
Section 4, Rule XIV of the Omnibus Rules Implementing the Labor Code. Secondly, Cosalan had
been deprived of procedural due process by the respondent Board members. He was never informed
of the charges raised against him and was given no opportunity to meet those charges and present
his side of whatever dispute existed; he was kept totally in the dark as to the reason or reasons why
he had been suspended and effectively dismissed from the service of Beneco Thirdly, respondent
Board members failed to adduce any cause which could reasonably be regarded as lawful cause for
the suspension and dismissal of respondent Cosalan from his position as General Manager of
Beneco. Cosalan was, in other words, denied due process both procedural and substantive. Fourthly,
respondent Board members failed to obtain the prior approval of the NEA of their suspension now
dismissal of Cosalan, which prior approval was required, inter alia, under the subsisting loan
agreement between the NEA and Beneco. The requisite NEA approval was subsequently sought by
the respondent Board members; no NEA approval was granted.
In reversing the decision of the Labor Arbiter declaring petitioner Beneco and respondent Board
members solidarily liable for the salary, allowances, damages and attorney's fees awarded to
respondent Cosalan, the NLRC said:
. . . A perusal of the records show that the members of the Board never acted in their individual
capacities. They were acting as a Board passing resolutions affecting their general manager. If these
resolutions and resultant acts transgressed the law, to then BENECO for which the Board was acting
in behalf should bear responsibility. The records do not disclose that the individual Board members
were motivated by malice or bad faith, rather, it reveals an intramural power play gone awry and
misapprehension of its own rules and regulations. For this reason, the decision holding the individual
board members jointly and severally liable with BENECO for Cosalan's backwages is untenable. The
same goes for the award of damages which does not have the proverbial leg to stand on.
The Labor Arbiter below should have heeded his own observation in his decision
Respondent BENECO as an artificial person could not have, by itself, done anything to prevent it. But
because the former have acted while in office and in the course of their official functions as directors
of BENECO, . . .
Thus, the decision of the Labor Arbiter should be modified conformably with all the foregoing holding
BENECO solely liable for backwages and releasing the appellant board members from any individual
liabilities. 8 (Emphasis supplied)
The applicable general rule is clear enough. The Board members and officers of a corporation who
purport to act for and in behalf of the corporation, keep within the lawful scope of their authority in so
acting, and act in good faith, do not become liable, whether civilly or otherwise, for the consequences
of their acts, Those acts, when they are such a nature and are done under such circumstances, are
properly attributed to the corporation alone and no personal liability is incurred by such officers and
Board members. 9
The major difficulty with the conclusion reached by the NLRC is that the NLRC clearly overlooked or
disregarded the circumstances under which respondent Board members had in fact acted in the
instant case. As noted earlier, the respondent Board members responded to the efforts of Cosalan to
take seriously and implement the Audit Memoranda issued by the COA explicitly addressed to the
petitioner Beneco, first by stripping Cosalan of the privileges and perquisites attached to his position
as General Manager, then by suspending indefinitely and finally dismissing Cosalan from such
position. As also noted earlier, respondent Board members offered no suggestion at all of any just or
lawful cause that could sustain the suspension and dismissal of Cosalan. They obviously wanted to
get rid of Cosalan and so acted, in the words of the NLRC itself, "with indecent haste" in removing
him from his position and denying him substantive and procedural due process. Thus, the record
showed strong indications that respondent Board members had illegally suspended and dismissed
Cosalan precisely because he was trying to remedy the financial irregularities and violations of NEA
regulations which the COA had brought to the attention of Beneco. The conclusion reached by the
NLRC that "the records do not disclose that the individual Board members were motivated by malice
or bad faith" flew in the face of the evidence of record. At the very least, a strong presumption had
arisen, which it was incumbent upon respondent Board members to disprove, that they had acted in
reprisal against respondent Cosalan and in an effort to suppress knowledge about and remedial
measures against the financial irregularities the COA Audits had unearthed. That burden respondent
Board members did not discharge.
The Solicitor General has urged that respondent Board members may be held liable for damages
under the foregoing circumstance under Section 31 of the Corporation Code which reads as follows:
Sec. 31. Liability of directors, trustees or officers. Directors or trustees who willfully and knowingly
vote for or assent to patently unlawful acts of the corporation or who are guilty of gross negligence or
bad faith in directing the affairs of the corporation or acquire any personal or pecuniary interest in
conflict with their duty as such directors or trustees shall be jointly liable and severally for all damages
resulting therefrom suffered by the corporation, its stockholders or members and other persons . . .
(Emphasis supplied)
We agree with the Solicitor General, firstly, that Section 31 of the Corporation Code is applicable in
respect of Beneco and other electric cooperatives similarly situated. Section 4 of the Corporation
Code renders the provisions of that Code applicable in a supplementary manner to all corporations,
including those with special or individual charters so long as those provisions are not inconsistent with
such charters. We find no provision in P.D. No. 269, as amended, that would exclude expressly or by
necessary implication the applicability of Section 31 of the Corporation Code in respect of members
of the boards of directors of electric cooperatives. Indeed, P.D. No. 269 expressly describes these
cooperatives as "corporations:"
Sec. 15. Organization and Purpose. Cooperative non-stock, non-profit
membership corporations may be organized, and electric cooperative corporations heretofore formed
or registered under the Philippine non-Agricultural Co-operative Act may as hereinafter provided be
converted, under this Decree for the purpose of supplying, and of promoting and encouraging-the
fullest use of, service on an area coverage basis at the lowest cost consistent with sound economy
and the prudent management of the business of such corporations. 10 (Emphasis supplied)
We agree with the Solicitor General, secondly, that respondent Board members were guilty of "gross
negligence or bad faith in directing the affairs of the corporation" in enacting the series of resolutions
noted earlier indefinitely suspending and dismissing respondent Cosalan from the position of General
Manager of Beneco. Respondent Board members, in doing so, acted belong the scope of their
authority as such Board members. The dismissal of an officer or employee in bad faith, without lawful
cause and without procedural due process, is an act that is contra legem. It cannot be supposed that
members of boards of directors derive any authority to violate the express mandates of law or the
clear legal rights of their officers and employees by simply purporting to act for the corporation they
control.
We believe and so hold, further, that not only are Beneco and respondent Board members properly
held solidarily liable for the awards made by the Labor Arbiter, but also that petitioner Beneco which
was controlled by and which could act only through respondent Board members, has a right to be
reimbursed for any amounts that Beneco may be compelled to pay to respondent Cosalan. Such right
of reimbursement is essential if the innocent members of Beneco are not to be penalized for the acts
of respondent Board members which were both done in bad faith and ultra vires. The liability-
generating acts here are the personal and individual acts of respondent Board members, and are not
properly attributed to Beneco itself.
WHEREFORE, the Petition for Certiorari is GIVEN DUE COURSE, the comment filed by respondent
Board members is TREATED as their answer, and the decision of the National Labor Relations
Commission dated 21 November 1988 in NLRC Case No. RAB-1-0313-84 is hereby SET ASIDE and
the decision dated 5 April 1988 of Labor Arbiter Amado T. Adquilen hereby REINSTATED in toto. In
addition, respondent Board members are hereby ORDERED to reimburse petitioner Beneco any
amounts that it may be compelled to pay to respondent Cosalan by virtue of the decision of Labor
Arbiter Amado T. Adquilen. No pronouncement as to costs.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur.
[G.R. No. L-27331 : July 30, 1981.]
ELISEO ALIMPOOS, CIRIACA ALIMPOOS, SGT. MILLARDO M. PATES, PEDRO BACLAY,
CATALINO YAMILO, RAFAEL CAPANGPANGAN, DALMACIO YGOT and EUFROCINA
ESTORES, Petitioners, vs. THE HONORABLE COURT OF APPEALS, HONORABLE JUDGE
MONTANO A. ORTIZ, REYNALDO MOSQUITO and MATILDE ABASTILLAS MOSQUITO,
Respondents.

DECISION

MELENCIO-HERRERA, J.:

Petitioner-spouses, Eliseo Alimpoos and Ciriaca Alimpoos, shall hereinafter be called the Offended
Parties. Petitioners Pedro Baclay, Catalino Yamilo, Rafael Capangpangan, Dalmacio Ygot, Eufrocina
Estores and Sgt. Millardo M. Pates may hereinafter be referred to as the Witnesses.
Respondent Reynaldo Mosquito will hereinafter be called the Accused. Respondent Matilde A.
Mosquito is the Accuseds wife. Respondent Court of Appeals will be termed the Appellate Tribunal;
respondent Judge Montano A. Ortiz, as respondent Trial Judge, and the Municipal Judge, as such.
In this Petition for Certiorari, the Offended Parties and the Witnesses seek the reversal of the
Decision of the Appellate Tribunal, upholding the disallowance of the Offended Parties appeal by the
Court of First Instance of Agusan cranad(the Trial Court, for short) in Civil Case No. 1088, entitled
Reynaldo Mosquito, et al. vs. Eliseo Alimpoos, et al, wherein respondent Trial Judge granted the
Accuseds petition for Habeas Corpus and declared his detention illegal. He also enjoined the
prosecution of Criminal Case No. 458 of the Municipal Court of Bayugan, Agusan cranad(hereinafter
called Criminal Case) where the Accused had been arrested.
The Accused was detained by the Chief of Police of Bayugan, Agusan, by virtue of a Warrant of
Arrest issued by the Municipal Judge in the Criminal Case, which was a prosecution for Robbery with
Less Serious Physical Injuries. The place allegedly robbed belonged to the Offended Parties.
Contending that the Warrant was issued without the observance of the legal requirements for the
issuance thereof, the Accused, then detained, and his wife instituted the Habeas Corpus case before
the Trial Court. Named as defendants in the original complaint were the Offended parties and the
Witnesses cranad(as witnesses for the prosecution) all of whom are residents of Agusan. In an
amended complaint, the two arresting policemen, the Chief of Police, and the Municipal Judge were
added as co-defendants.
The Complaint of the Accused was premised on the alleged violation of Article
32 cranad(4),cranad(8), cranad(15), cranad(16), cranad(17) and cranad(19) of the Civil Code, and
Article 269 of the Revised Penal Code, by defendants therein who were said to have been
instrumental in causing the detention and arrest of the Accused. It prayed for the Accuseds release
from detention, as well as for the issuance of a Writ of Preliminary Injunction to enjoin the Offended
Parties and the Witnesses, and the Municipal Judge and/or their representatives, from proceeding
with the Criminal Case. Actual, moral and exemplary damages, attorneys fees, and costs were also
prayed for.
The Offended Parties and the Witnesses, except Sgt. Pates, were represented by the law firm of
Seno, Mendoza and Associates, with offices located in Cebu City. They contended that they had
nothing to do with the Accuseds detention and arrest. The Municipal Judge, the Chief of Police, and
Patrolmen Libres and Galimba, who were represented by the Acting Provincial Fiscal of Butuan City,
alleged that the Warrant of Arrest was validly issued. Sgt. Pates was represented by Capt. Igualdad
Cunanan, and reiterated substantially the same defense.
After due hearing in the Habeas Corpus case, respondent Trial Judge issued the appealed
Order cranad(the ORDER, for short), dated March 26, 1966, declaring the detention of the Accused
illegal and granting the Writ of Habeas Corpus as well as the Preliminary Injunction prayed for upon
the filing of the required bond. The dispositive portion of the ORDER reads:
WHEREFORE, judgment is hereby rendered declaring illegal the detention of plaintiff Reynaldo
Mosquito by virtue of a warrant of arrest issued without the observance of the fundamental legal
requirements prior to the issuance of said Writ. The petition for habeas corpus is therefore granted
and it is hereby ordered that said detention prisoner be forthwith released from custody, and set at
liberty and that upon the filing of the bond in the amount of P1,000.00 a writ of preliminary injunction
issue restraining the Municipal Judge of Bayugan, Agusan, defendant Vicente Galicia and the rest of
the defendants, their attorneys, agents or representatives from proceeding with Criminal Case No.
458 entitled The People of the Philippines versus Reynaldo Mosquito et als., for the crime of
Robbery with Less Serious Physical Injuries, with costs against the defendants in these habeas
corpus and preliminary injunction proceedings.
SO ORDERED. 1
The Acting Provincial Fiscal of Agusan received copy of said ORDER on March 31, 1966, and on
April 1, 1966, moved for extension of time within which to appeal, but eventually desisted from doing
so.
On April 4, 1966, counsel for the Offended Parties and the Witnesses mailed from Cebu City a Notice
of Appeal to the Court of Appeals stating that:
Undersigned counsel received a copy of the order only today cranad(April 4, 1966) which copy was
handed to him by defendant cranad(petitioner) Eliseo Alimpoos.
The appeal was opposed by the Accused on the ground that it was filed beyond the 48-hour
reglementary period within which to perfect an appeal in Habeas Corpus proceedings.
On April 23, 1966, over the Offended Parties objections, respondent Trial Judge dismissed their
appeal thus:
The notice of appeal of the Provincial Fiscal or of Atty. Seno for the defendants, having been filed out
of time the Order of March 26, 1966 granting the habeas corpus is now final and executory. The
urgent ex-parte motion to grant extension to file notice of appeal does not interrupt the running of the
period fixed by law for filing an appeal which is forty-eight hours from receipt of the order. 2
No reconsideration was prayed for by the Provincial Fiscal.
The Offended Parties, however, resorted to a Mandamus proceeding before the Court of Appeals
seeking to compel respondent Trial Judge to give due course to said appeal.
On January 11, 1967, the Appellate Tribunal, 3 in CA-G.R. No. 37781-R, denied Mandamus stating in
part:
As the records show that copy of the questioned Order was received by counsel on March 30, 1966,
the notice of appeal was not filed within the 48-hour limit. Petitioners appeal was therefore filed out of
time and the judgment has become final.
In view of the foregoing, this petition is hereby denied. Costs against petitioners.
Hence, this Petition for Certiorari, filed on March 13, 1967, praying that the Decision of the Appellate
Tribunal be set aside and the appeal interposed by the Offended Parties in the Habeas Corpus case
be allowed.
We gave due course to the Petition on March 31, 1967, and after the filing of the respective Briefs,
the case was considered submitted for decision on April 19, 1968.
The Offended Parties and the Witnesses pose the following Assignments of Error:
I
The Honorable Court of Appeals erred in finding that counsel, however, has not presented a shred of
proof to bolster his claim of actual receipt of the order, Annex B on April 4, 1966, save of his own
self-serving assertions, which cannot prevail over the court record, cranad(Annex 1 of Answer)
certified to by the Clerk of Court, bearing the true actual date when the parties and counsel herein
received their corresponding copies. The same certified true copy of the order shows that the law
office of herein counsel received its copy on March 30, 1966 not on April 4, 1966;
II
The Honorable Court of Appeals erred in holding that respondent Judge was fully justified in relying
on its own record to determine the date on which petitioners counsel received copy of the order,
without any proof thereof, because courts will take judicial notice of its records and of the facts which
the same records establish and which are known to judges by reason of their judicial functions.
III
The Honorable Court of Appeals erred in finding that as the records show that copy of the questioned
order was received by counsel on March 30, 1966, the notice of appeal was not filed within the 48-
hour limit.
IV
The Honorable Court of Appeals erred in finding that petitioners appeal was, therefore, filed out of
time and the judgment has become final.
V
The Honorable Court of Appeals erred in denying the Motion for Reconsideration without requiring the
adverse party to answer the said Motion for Reconsideration.
VI
The Honorable Court of Appeals erred in failing to pass upon the issues raised in the lower court and
in the Court of Appeals.
The technical issue of timeliness of the appeal will first be considered. Counsel for the Offended
Parties alleges that he received a copy of the ORDER only on April 4, 1966 from the Offended Party,
Eliseo Alimpoos, who handed him the copy in Cebu City. The latter had received it on March 31,
1966. Counsel contends that the reglementary period to appeal can not be reckoned from the latter
date because, under the Rules, when a party is represented by counsel, notice should be sent, not to
the party, but to his counsel of record. Counsel for the Offended Parties and the Witnesses further
maintains that the period from which to reckon the period of appeal should actually be April 14, 1966
when he actually received, through the mails, his copy of the ORDER, as shown by the rubber stamp
of his office appearing on the upper right hand corner of a duplicate copy of the ORDER. 4
Respondent Trial Judge and the Appellate Tribunal alike found the foregoing assertion self-serving
and relied instead on the last page of the ORDER, 5 purportedly showing that the law office of
counsel for the Offended Parties and the Witnesses received its copy on March 30, 1966 and not on
April 4, 1966, hence the disallowance of the appeal by respondent Trial Judge, and its affirmance by
the Appellate Court.
The crucial last page is reproduced hereunder exactly as it appears:
CIVIL CASE NO. 1088

ORDER

and preliminary injunction proceedings.

SO ORDERED.

Done this 26th day of March, 1966 at the City of Butuan.

(SGD.) MONTANO A. ORTIZ
JUDGE

MAO-bb.
Recd.
31/3/66 cranad(initial)

Received:
(Sgd.) Illegible Mun. Judge cranad(Sgd.) Illegible 3/30/66 7:00 evening
3/31/66 cranad(Sgd.) B. Galimba 3/30/00 7:00
cranad(Sgd.) Eliseo Alimpoos

Received copy March 31, 1966 8:00 A.M.

Ciriaco Alimpoos
Pedro Baklay
Catalino Yamilo
Rafael Capangpangan
Dalmacio Ygot
Eufrocina Estores

By: cranad(Sgd.) Eliseo Alimpoos

March 31, 1966
(Sgd.) Illegible
cranad(Sgd.) Illegible

For the Chief of Police 3-30-66

TO ATTYS. SENO, MENDOZA,
RUIZ & ASS. & CAPT. CUNANAN

BY REG. MAIL #11633 & #11634

A certified true copy:

(s) MACARIO C. CONDE
(t) MACARIO C. CONDE
Clerk of Court 6 cranad(emphasis supplied)
Obviously, copies of the ORDER intended for Attys. Seno, Mendoza, Ruiz & Ass. & Capt. Cunanan
were sent by registered mail with Receipts Nos. 11633 and 11634. Receipt No. 11633 is the registry
number corresponding to the copy for the law office, and Receipt No. 11634 that for Capt. Cunanan.
This is borne out by the envelope 7 from the Office of the Clerk of Court Butuan City addressed to
Seno, Mendoza, Ruiz and Associates, Cor. Magallanes-D Jakosalem Sts., Aboitiz Bldg., Cebu City
with the following markings:
On the face of the envelope lower left hand corner:
REGISTERED
CITY OF BUTUAN
PHILIPPINES

March 31, 1966

Superimposed on it in ink is No. 11633

On the back of the envelope appears a big diagonal stamp FOR OFFICIAL USE ONLY and two
post office stamp marks:

REGISTERED
CITY OF BUTUAN
PHILIPPINES

March 31, 1966

CEBU CITY

Received
April 11, 1966
Philippines
Since the registered mail was received in Cebu City only on April 11, 1966, it is not unlikely that the
law office and addressee, as alleged by it, received the mail only three days after, or on April 14,
1966.
The notation
(Sgd.) Illegible
3-30-66
appearing above the following note:
To Attys. Seno, Mendoza, Ruiz & Ass. &
Capt. Cunanan by reg. mail #11633 & #11634
can not refer to personal receipt by the said law office for the obvious reason that its office being at
Cebu City, personal service would not have been possible in Agusan.
It is apparent then that both respondent Trial Judge and the Appellate Tribunal committed error in
holding that the Offended Parties appeal was interposed beyond the reglementary period. Service on
the Offended Party, Eliseo Alimpoos, on March 31, 1966 cannot be deemed as notice in law to his
counsel. 8 Under the circumstances, therefore, reliance may be placed on the assertion of counsel
that the Offended Party, Eliseo Alimpoos, had given him a copy of the ORDER only on April 4, 1966,
which must be deemed as the date of notice to said counsel of the ORDER. Counsel lost no time in
mailing his Notice of Appeal on the same day, April 4, 1966 from Cebu. 9 Procedurally, the appeal
was seasonably filed.
Although the Appellate Tribunal had committed error in its appreciation of the date when the lawyers
of the Offended Parties were served notice of the ORDER, we believe it would not be justifiable to
reverse and to direct respondent Trial Judge to allow the Offended Parties to appeal. Instead, we are
opting to render a practical judgment.
1. The original and amended complaints filed by the Offended Parties with the Trial Court contained
three causes of action, principally for Habeas Corpus and for damages. However, the proceedings
were conducted purely as a Habeas Corpus case. The original complaint was filed on February 22,
1966, and resolved on March 26, 1966, in keeping with the speedy and effectual character of
Habeas Corpus proceedings. 10
The ORDER treated the case as exclusively a Habeas Corpus proceeding, ignoring the Accuseds
prayer for damages. The lawyers of the Offended Parties attempted to appeal from the ORDER in
accordance with Section 19 of Rule 41, captioned who may appeal in Habeas Corpus cases. The
Appellate Tribunal resolved in the mandamus case as relating to a Habeas Corpus case.
2. Because the proceedings before the trial Court was a Habeas Corpus case, the complaint filed was
obviously defective. A Habeas Corpus proceeding is not a suit between parties.
Not a suit between the parties. While the issuance of the writ is to all intents and purposes the
commencement of a civil action, a suit, yet technically the proceedings by Habeas Corpus is in no
sense a suit between private parties. It is an inquisition by the government, at the suggestion and
instance of an individual, most probably, but still in the name and capacity of the sovereign. It may be
analogized to a proceeding in rem and instituted for the sole purpose of fixing the status of a person.
The person restrained is the central figure in the transaction. The proceeding is instituted solely for
his benefit. As it is not designed to obtain redress against anybody, and as no judgment can be
entered against anybody, and as there is no real plaintiff and defendant, there can be no suit in the
technical sense. chanroblesvirtualawlibrary(Extraordinary Legal Remedies, Forrest G. Ferris &
Forrest G. Ferris, Jr., p. 28)
The Accused, therefore, should have limited his complaint against the Chief of Police of Bayugan, the
person having him in alleged illegal custody. That is the clear implication in the following provisions of
Section 3, Rule 102, which enumerates what should be set forth in a petition for Habeas Corpus:
SEC. 3. Requisites of application therefor. Application for the writ shall be by petition signed and
verified either by the party for whose relief it is intended, or by some person on his behalf, and shall
set forth:
(a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty;
(b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are
unknown or uncertain, such officer or person may be described by an assumed appellation, and the
person who is served with the writ shall be deemed the person intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such person, if it can be procured without
impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal
authority, such fact shall appear.
The Accuseds allegation as to, and prayer for, damages was out of place. In Habeas Corpus cases,
the judgment in favor of the applicant cannot contain a provision for damages. It has to be confined to
what is provided for in Section 15, Rule 102, which reads:
SEC. 15. When prisoner discharged if no appeal. When the court or Judge has examined into the
cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or
restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be
effective until a copy of the order has been served on the officer or person detaining the prisoner. If
the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith
released.
It will be observed that there is no provision for serving copy of the discharge on any other private
party defendant, nor for an award of damages.
As it has been held:
The sole function of the writ is to relieve from unlawful imprisonment, and ordinarily it cannot properly
be used for any other purpose. Thus it has been held that the writ cannot properly be used: To
enforce a right to service; to determine whether a person has committed a crime; in determine a
disputed interstate boundary line; to punish respondent or to afford the injured person redress, for the
illegal detention; to recover damages or other money award;
.cra . chanroblesvirtualawlibrary(emphasis supplied) cranad(Vt In re St. Onge, 108 A203, 93 Vt.
373; NY People vs. Prior, 182 NYS 577, 112 Misc. 208 [39 C.J.S. 430]).
3. The Accused has challenged the personality of the Offended Parties to interpose the appeal,
premised on Section 19 of Rule 41 of the Rules of Court, which provides:
SEC 19. Who may appeal in habeas corpus cases. The appeal in habeas corpus cases may be
taken in the name of the person detained or of the officer or person detaining him. But if the detention
is by reason of civil proceedings the party in interest or the person who caused the detention shall be
entitled to control the appeal; and if, by virtue of criminal proceedings, the provincial fiscal or the city
fiscal as the case may be, is entitled to control the appeal on behalf of the government, subject to the
right of the Solicitor General to intervene chanroblesvirtualawlibrary(Rule 41).
It is indisputable that the Habeas Corpus case arose by virtue of criminal proceedings in the Criminal
case. Pursuant to the aforequoted provision, therefore, it was the Provincial Fiscal who was entitled to
control the appeal on behalf of the Government. In this case, although the Provincial Fiscal of
Agusan, filed a Motion for Extension of Time to Perfect Appeal on April 1, 1966, he had
nevertheless abandoned the same. Neither did he take steps for the reconsideration of respondent
Trial Judges Order of April 23, 1966 dismissing the appeal. The inaction of the Fiscal may be
deemed to have been an admission on his part of the unmeritoriousness of an appeal. As in criminal
proceedings, his sound discretion on the matter should be deemed controlling, and it has to be held
that the Offended Parties were bereft of personality to prosecute the appeal.
Noteworthy is the fact that in the instant case, the Offended Parties had alleged in their Answer 11
that they were not detaining the Accused and had nothing to do with the Warrant of Arrest issued
against him. With all the more reason then that they had no personality to interpose an appeal from a
judicial Order granting the Writ of Habeas Corpus and ordering the release of a person detained.
4. It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in
the Criminal Case. That is error. If the Accused was illegally detained because he was arrested
without a preliminary examination, what should have been done was to set aside the warrant of arrest
and order the discharge of the Accused, but without enjoining the Municipal Judge from conducting a
preliminary examination and afterwards properly issuing a warrant of arrest. Habeas Corpus
proceedings are not meant to determine criminal responsibility. This principle was enunciated in Lee
Ching v. Collector of Customs, 33 Phil. 329 cranad(1916) where it was said:
Proceedings in habeas corpus are separate and distinct from the main case from which the
proceedings spring. They rarely, if ever, touch the merits of the case and require no pronouncement
with respect thereto.
When a preliminary investigation is not held, or is improperly held, the procedure is not to dismiss the
case, or enjoin its prosecution, but to have the preliminary investigation conducted. As stated in
People v. Figueroa, 27 SCRA, 1239, 1247cranad(1969):
Assuming that the trial court felt that the accused should have been given more ample chance and
opportunity to be heard in the preliminary investigation, then what it could properly have done, since
in its own Order it recognized that Fiscal Abaca had conducted a preliminary investigation although
hurriedly in its opinion, was not to dismiss the information but to hold the case in abeyance and
conduct its own investigation or require the fiscal to hold a reinvestigation. This Court, speaking
through now Mr. Chief Justice Concepcion in People vs. Casiano, had stressed this as the proper
procedure, pointing out that the absence of such investigation did not impair the validity of the
information or otherwise render it defective. Much less did it affect the jurisdiction of the Court of First
Instance over the present case.
5. As a matter of fact, Habeas Corpus was not the proper remedy for the Accused. In a case where a
warrant of arrest was assailed for an alleged improper preliminary examination, this Court, in Luna v.
Plaza, 26 SCRA, 310, 323 cranad(1968), said:
At any rate, we believe that, if at all, the remedy available to the petitioner herein, under the
circumstances stated in this opinion, is not a petition for a writ of habeas corpus but a petition to
quash the warrant of arrest or a petition for reinvestigation of the case by the respondent Municipal
Judge or by the Provincial Fiscal.
It is the general rule that Habeas Corpus should not be resorted to when there is another remedy
available.
As a general rule, a writ of habeas corpus will not be granted where relief may be had or could have
been procured by resort to another general remedy, such as appeal or writ of error. But the existence
of another remedy does not necessarily preclude a resort to the writ of habeas corpus to obtain relief
from illegal detention, especially where the other remedy is deemed not to be as effective as that of
habeas corpus. 12
Time and again, it has been explained that Habeas Corpus cannot function as a writ of error. 13
6. It has further been noted that respondent Trial Judge erred in adjudging costs against defendants
in the Habeas Corpus case. When a person confined under color of proceedings in a criminal case is
discharged, the costs shall be taxed against the Republic 14
7. The Accused was charged with Robbery with Less Serious Physical Injuries in early 1966. Through
the error of the Municipal Judge in issuing the warrant of arrest without conducting a preliminary
examination, the Accused was able to institute the Habeas Corpus case which has pended to this
date, or for fifteen years. The error of the Municipal Judge has considerably retarded the turning of
the wheels of justice. It should be meet to reiterate the following admonition made in the aforecited
Luna-Plaza case:
We wish to stress, however, that what has been stated in this opinion is certainly not intended to
sanction the return to the former practice of municipal judges of simply relying upon affidavits or
sworn statements that are made to accompany the complaints that are filed before them, in
determining whether there is a probable cause for the issuance of a warrant of arrest. That practice is
precisely what is sought to be voided by the amendment of Section 87 cranad(c) of Republic Act
296 cranad(Judiciary Act of 1948) which requires that before a municipal judge issues a warrant of
arrest he should first satisfy himself that there is a probable cause by examining the witnesses
personally, and that the examination must be under oath and reduced to writing in the form of
searching questions and answers. It is obvious that the purpose of this amendment is to prevent the
issuance of a warrant of arrest against a person based simply upon affidavits of witnesses who made,
and swore to, their statements before a person or persons other than the judge before whom the
criminal complaint is filed. We wish to emphasize strict compliance by municipal or city judges of the
provision of Section 87(c) of the Judiciary Act of 1948, as amended by Republic Act 3828, in order to
avoid malicious and/or unfounded criminal prosecution of persons.
In view of the foregoing considerations, it should be practical to resolve this case in a manner that will
not further protract the matter brought to this instance. It will not do merely to reverse and set aside
the appealed decision of the Appellate Tribunal, for it will leave the ORDER of respondent Trial Judge
outstanding with its injunction against the further prosecution of the Criminal Case.
WHEREFORE, in the distinct understanding that this Court has not acted in a proper Habeas Corpus
proceeding, the Warrant of Arrest issued against Reynaldo Mosquito in Criminal Case No. 458 of the
Municipal Court of Bayugan, Agusan, the Order of March 26, 1966 issued in Civil Case No. 1088 of
the Court of First Instance of Agusan, as well as the Decision of the Court of Appeals in its case CA-
G.R. No. 37781-R, are hereby set aside; and the proceedings in the last two cases mentioned are
invalidated.
Without pronouncement as to costs. SO ORDERED.
G.R. No. L-58781 July 31, 1987
TEOFILO MAGNO, ISIDRO CABATIC, HERMINIO CABATIC, FELICITAS CABATIC, Assisted by
her husband, JOSE CARINO, TOMAS MAGNO, ELPIDIO MAGNO, AURORA MAGNO, Assisted
by her husband, ODELON BUGAYONG, NICANOR MAGNO and LOLITA MAGNO, petitioners,
vs.
HONORABLE COURT OF APPEALS, GAVINO MAGNO, NICETAS MAGNO, and NAZARIA
MAGNO, Assisted by her husband, SIMEON DE GUZMAN, respondents.
PARAS, J.:
This is a special civil action for certiorari seeking to declare void ab initio the Resolution of respondent
Court of Appeals dated September 22, 1981 which ordered the issuance of an Entry of Judgment in
CA-G.R. No. 52655-R. The petition also prays for the issuance of a preliminary injunction to
temporarily maintain the status quo by ordering the provincial sheriff of the province of Pangasinan to
desist from enforcing the writ of execution issued in Civil Case No. A-413 pursuant to the said Entry
of Judgment.
Civil Case No. A-413 is an action for Partition of Certain Properties and for Damages, filed by private
respondents against petitioners in the Court of First Instance of Pangasinan, Branch VII thereof. In a
Decision* dated October 5, 1972, the lower court ordered the partition of the properties subject of the
complaint in accordance with the schedule therein appearing. It also ordered the petitioners to pay
jointly and severally unto the private respondents the amount of P3,000.00 as attorney's fees.
Petitioners appealed to the Court of Appeals which appeal was docketed as CA-G.R. No. 52655-R.
On June 30, 1981, the said court promulgated its Decision ** affirming the decision of the lower court.
Notice of the decision was sent to petitioners' counsel Atty. Atinidoro B. Sison at his given mailing
address which is 33 B.M.A. Ave., Tatalon, Quezon City. The same, however, was returned to the
court with the certification of the postmaster "Return to sender, Reason moved."
On September 14, 1981, respondent Court of Appeals issued the following Resolution:
Considering that the copy of Decision dated June 30, 1981 addressed to Atty. Atinidoro B. Sison of
33 B.M.A. Tatalon, Quezon City, counsel for the appellants was returned unclaimed with the notation
on the envelope "MOVED", the Court Resolved to resend the said copy of the Decision to the
appellants themselves at Alaminos, Pangasinan, and the appellants are hereby informed that the
fifteen (15) days period within which to file for reconsideration will be counted from the receipt of the
decision herewith attached. (Annex "5-A" p. 54, Rollo).
A copy of this Resolution was sent to petitioners themselves addressed as follows Mr. Teofilo
Magno et al., Patricio, Alaminos, Pangasinan. It is not disputed that this address is the address on
record of petitioners. But again the enveloped addressed to them was returned to the court with the
notation deceased.
On September 22, 1981, the respondent court issued its now assailed Resolution ordering the
issuance of the entry of judgment.
Petitioners' motion for reconsideration was denied hence, they filed the present petition, which We
find to be without merit.
It is well-settled that when a party is represented by counsel, notice should be made upon the counsel
of record at his given address to which notices of all kinds emanating from the court should be sent in
the absence of a proper and adequate notice to the court of a change of address. (Cubar vs.
Mendoza, 120 SCRA 768).lawph!1
In the case now before Us, the records show that the notice and copy of the decision of respondent
Court of Appeals were sent to petitioners's counsel of record Atty. Atinidoro E. Sison at his given
mailing address which is 33 B.M.A. Avenue, Tatalon, Quezon City. The first notice to him by the
Postmaster to claim his mail was on July 9, 1981. The rule is that service of notice becomes effective
at the expiration of the five-day period upon failure of the addresse to claim his mail within five (5)
days from the date of first notice Sec. 8, Rule 13 Rules of Court (Feraren vs. Santos, 113 SCRA 707).
Therefore in this case the service became effective five days after July 9, 1981 which is July 14,
1981. The decision became final on August 13, 1981. A xerox copy of the said envelope properly
addressed appears on page 52 of the Rollo. This fact is further shown by the certification issued by
the then Acting Clerk of the Court of Appeals, Atty. Cesar M. Marzan. (p. 51, Rollo). If Atty. Sison
moved to another address without informing the respondent of his change of address the omission or
neglect will not stay the finality of the decision. The notice sent to petitioners themselves, under the
circumstances is not even necessary. (Francisco vs. Puno, 108 SCRA 427). It may be stated though
that while petitioners claim that Teofilo Magno to whom the notice to the petitioners was addressed is
already dead, it is not explained why their present petition before this Court still includes the name
Teofilo Magno. There is no indication in the record that he has been duly substituted by his legal
representative.
The decision in this case having become final on July 29, 1981, there being no appeal taken
therefrom, respondent court committed no error in issuing its resolution dated September 22, 1981
ordering the issuance of the corresponding entry of judgment.
WHEREFORE, for lack of merit, this petition is hereby DISMISSED. The restraining order earlier
issued is lifted.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
G.R. No. 86819 November 9, 1989
ADAMSON OZANAM EDUCATIONAL INSTITUTION INC., ALSO KNOWN AS ADAMSON
UNIVERSITY, petitioner,
vs.
ADAMSON UNIVERSITY FACULTY AND EMPLOYEES ASSOCIATION AND CONRADO
MAGLAYA, COMMISSIONER OF THE NATIONAL LABOR RELATIONS
COMMISSION, respondents.
Ongkiko, Bucoy & Associates for petitioner.
Cresenciano I. Espino, Teotico Quevedo & A. Organista for private respondent.
RESOLUTION

GANCAYCO, J.:
The Adamson Ozanam Educational Institution, Inc. also known as the Adamson University (AU) was
granted by the then Ministry of Education, Culture & Sports (MECS), the authority to increase their
tuition fees by 10% and 5% for the school year 1983-84. The Adamson University Faculty and
Employees Association (AUFEA) believing that under P.D. No. 451 60% thereof should be allocated
for the increase in salaries and wages of the members of the faculty and other members of the school
filed a complaint in the Ministry of Labor & Employment (MOLE) against the AU for the recovery of
the said 60%.
The contention of the AU is that P.D. No. 451 was repealed by the Educational Act of 1982, which
took effect on September 12, 1982, and that assuming that B.P. No. 451 was not repealed,
complainant is not entitled to any benefit considering that there was no actual increment proceeds in
the tuition fee increase for the school year 1983-84 upon which to base the 60% allocation.
In a decision of the labor arbiter dated March 31, 1986 the complaint was dismissed for lack of merit.
The AUFEA appealed therefrom to the National Labor Relations Commission (NLRC) wherein in due
course a decision was rendered on September 30, 1988 setting aside the appealed decision and
ordering the AU to remit to the members of AUFEA the amount of P1,298,160.00 representing the
60% share in the increment proceeds of the tuition fees collected for the school year 1983-84. A
motion for reconsideration of the said decision filed by the AU was denied in a resolution dated
January 30, 1989 for having been filed out of time.
Hence, the herein petition for certiorari filed by the AU. On February 22, 1989, the court dismissed the
petition for failure to sufficiently show that respondent commission had committed a grave abuse of
discretion in rendering its questioned judgment. A motion for reconsideration hereof was filed by
petitioner to which respondents were required to file their comment. The desired comments having
been submitted and the reply thereto filed by petitioner, the court finds a cogent basis to grant the
motion for reconsideration. The petition is based on the following arguments:
SERVICE OF THE DECISION UPON THE SECURITY GUARD OF THE TOEFEMI BUILDING,
WHERE RESPONDENT'S FORMER COUNSEL USED TO HOLD OFFICE, IS INEFFECTIVE AND
DOES NOT CAUSE THE RUNNING OF THE 10-DAY PERIOD FOR AN APPEAL.
BASED ON THE MERITS OF THE CASE, THE SUBJECT DECISION PROMULGATED ON 30
SEPTEMBER 1988 IS CONTRARY TO THE DOCTRINE LAID DOWN IN CEBU INSTITUTE OF
TECHNOLOGY ET AL. VS. HON. BLAS OPLE, ET AL.
On the first issue, it appears that the decision of the NLRC dated September 30, 1988 was served to
the office of the counsel for petitioner on October 11, 1988 through the security guard of the building.
The office of then counsel for petitioner, Atty. Andres Narvasa (now member of this Court), was
located at the TOEFEMI building. The copy of the decision was addressed to Atty. Roberto I. Santos
of said law office. However, at the time of said serllice the said law office was already dissolved as
Atty. Narvasa was appointed as a member of this Court. Nevertheless, a copy of said decision was
transmitted by the former office of now Mr. Justice Narvasa to the present counsel of record for
petitioner on November 5, 1988 who promptly filed a motion for reconsideration on November 15,
1988.
In denying the motion for reconsideration the NLRC observed that the former counsel of petitioner did
not withdraw nor file a manifestation that his office had been dissolved so he cannot continue to act
as counsel thereof.
Thus the question that arises is whether the service of the copy of the decision upon the security
guard of the building where the former office of petitioner's counsel was located was sufficient
compliance with the requirements of the law. Section 4, Rule 13 of the Rules of Court which is
suppletory to the rules of the NLRC, provides as follows:
Section 4. Personal Service. Service of the papers may be made by delivering personally a copy to
the party or his attorney, or by leaving it in his office with his clerk or with a person having charge
thereof. If no person is found in his office, or his office is not known, then by leaving the copy,
between the hours of eight in the morning and six in the evening, at the party's or attomey's
residence, if known, with a person of sufficient discretion to receive the same. (Emphasis supplied)
Under the foregoing rule, service of papers should be delivered personally to the party or attorney or
by leaving it at his office with his clerk or with a person having charge thereof. The service of the
court's order upon any person other than the party's counsel is not legally effective. 1 Where the copy
of the decision is served on a person who is neither a clerk or one in charge of the attorney's office,
such service is invalid and the decision does not therefore become executory. 2 The security guard of
the building where the attorney is holding office is neither the office clerk nor a person in charge
thereof as contemplated in the rules. In PLDT vs. NLRC, 3 this Court ruled that the service of the
decision at the ground floor of a party's building when the office is at the 9th floor is not a valid
service.
From the foregoing, it is clear that the service of the decision dated October 11, 1988 on the security
guard of the building where the then counsel for petitioner was holding office was an invalid service
and the running of the period within which to appeal therefrom or file a motion for reconsideration
cannot be deemed to commence thereby.
While it is true that said former counsel of petitioner failed to withdraw his appearance, the NLRC can
take judicial notice of the fact that Mr. Justice Narvasa was already elevated to the Supreme Court at
the time the decision in this case was promulgated. Since its decisions are reviewable by the
Supreme Court such matter of public knowledge should be within the judicial notice of the NLRC
because of the nature of their functions. 4
On the second issue, the order of respondent NLRC to petitioner to remit to the respondent AUFEA
the sum of P1,298,160.00 representing its 60% share in the increment tuition fees collected for the
school year 1983-1984 is predicated on the argument that: 1) MECS Order No. 25 took effect on April
1, 1985 and prior thereto this Court has ruled that the 60% incremental proceeds should be applied to
the basic salaries and wages; and 2) inasmuch as the CBA was concluded two (2) days after
petitioner was granted the authority to increase its tuition fees, it does not necessarily follow that the
parties intended that the CBA benefits will be taken from the said incremental proceeds.
We disagree.
In the case of Cebu Institute of Technology vs. Hon. Blas Ople, 5 this Court ruled that P.D. No. 451
was repealed by B.P. 232 effective September 11, 1982. From the said date the governing law on the
disposition of the 60% incremental proceeds on the tuition fees are the appropriate provisions of B.P.
Blg. 232, which, in pertinent part provides as follows:
Not less than sixty (60) percent of the incremental tuition proceeds shall be used for salaries or
wages, allowances and fringe benefits of faculty and support staff, including cost of living allowance,
imputed costs of contributed services, thirteenth (13th) month pay, retirement fund contributions,
social security, medicare, unpaid school personnel claims, and payment as may be prescribed by
mandated wage orders, collective bargaining agreements and voluntary employer practices ... (Sec.
42; Emphasis supplied)
Accordingly, as of September 11, 1982, Section 3(a) of PD 451 which limits the disposition of said
60% incremental proceeds increase in tuition fees to those of salaries and wages is deemed
abrogated by way of repeal. 6 Indeed even prior thereto this Court ruled in the University of the East
vs. UE Faculty Association 7 as follows:
We are underscoring such modification because as We see it, it settles the second main issue We
have stated at the outset as to whether or not increase of salaries of wages or allowances or benefits
secured by collective bargaining may be charged against the incremental proceeds (60%) under PD
451. We read the latest Malacaang decision to mean that increase of salaries even those secured
bv collective bargaining may be charged to the 60% incremental proceeds of MEC authorized tuition
fee increases. ... (Emphasis supplied)
MECS Order No. 25 finds legal support in B.P. Blg. 232, otherwise known as the Educational Act of
1982 as said MECS Order is an implementing administrative rule interpretative of a pre-existing
statute and not declarative of certain rights with obligation thereunder. The same should be given
retroactive effect and its effectivity should be on September 11, 1982, which is the date of effectivity
of B.P. Blg. 232, not April 1, 1985. Remedial or curative statutes are by nature intended to be
retroactive. 8
And this is as it should be as rules and regulations are and should be for the sole purpose of carrying
into effect a general provision of the law. 9 Thus guided bv the Cebu Institute of Technology which
declared the automatic repeal of P.D. 451 respondent NLRC committed a grave error in ruling that
petitioner cannot charge to the 60% incremental proceeds the items under paragraph 7.4 of the
MECS Order No. 25 including collective bargaining.
WHEREFORE, the motion for reconsideration is granted and the resolution of February 22, 1989 is
set aside; the petition is GRANTED so that the questioned decision of the NLRC dated September
30, 1988 and its resolution dated January 20, 1989 are hereby REVERSED AND SET ASIDE while
the decision of the labor arbiter dated March 31, 1986 dismissing the complaint for lack of merit is
hereby AFFIRMED without pronouncement as to costs.
SO ORDERED.
Cruz, Grio-Aquino and Medialdea, JJ., concur.
Narvasa, J., took no part.
G.R. No. L-50711 November 17, 1980
SIMEON ARAMBURO and CORAZON ARAMBURO KO, SALVACION TAN DE ARAMBURO,
JESUS T. ARAMBURO, JULIO T. ARAMBURO, JOSEPHINE T. ARAMBURO, MARY JANE T.
ARAMBURO, AUGUSTO T. ARAMBURO, JR., JAIME T. ARAMBURO, JULIET T. ARAMBURO,
JACKSON T. ARAMBURO, JOCELYN T. ARAMBURO, JOVY T. ARAMBURO, petitioners,
vs.
COURT OF APPEALS, CONCEPCION R. PEA, PROVINCIAL SHERIFF OF ALBAY, respondents.

ABAD SANTOS, J.:

In this petition for certiorari, mandamus and prohibition, with prayer for a restraining order filed on
May 25, 1979, the petitioners seek to set aside the decision of the Court of Appeals, dated December
28, 1978, in CA-GR No. 41251-R entitled "Concepcion R. Pea vs. Salvacion Tan de Aramburo, et
al." and/or to remand the case to the Court of Appeals and other said court to further proceed with the
same by requiring the herein private respondent, appellant in said Court of Appeals' case, to furnish
the herein petitioners, the appellees in said case, with a copy of the appellant's brief and to allow
petitioners-appellees to file their brief within 90 days from receipt of said copy before rendering a new
decision on said appeal. Petitioners further pray that the Provincial Sheriff of Albay be restrained from
enforcing the writ of execution issued by the Court of First Instance of Albay ordering said Provincial
Sheriff to execute the said decision of the Court of Appeals.
The procedural antecedents of this petition are as follow: On January 14, 1963, the herein petitioners
filed with the Court of First Instance of Albay an application for registration of lots Nos. 2361 and 4725
of the Cadastral Survey of Malinao. Docketed as Land Registration Case No. 311, the application for
registration was opposed by the herein private respondent, Concepcion R. Pea who prayed that she
be declared the owner of said lots. On May 23, 1964, said private respondent filed with the same
Court of First Instance of Albay an action for reivindicacion with damages seeking to recover from the
herein petitioners the two lots covered by the application for registration together with lot No. 2360 of
the same cadastral survey. As the latter lot was found to be in the possession of a certain Jose
Atadero, the complaint was amended to include said new defendant. Said complaint was docketed as
Civil Case No. 2850 and was jointly tried with Land Registration Case No. 311. On February 14,
1968, a decision was rendered by the Court of First Instance of Albay dismissing both cases. From
said decision, the herein private respondent appealed to the Court of Appeals. The appeal was
docketed in the Court of Appeals as CA-G.R. No. 41251-R. Respondent-appellant filed with said
appellate court her appeal brief; petitioners-appellee did not file any brief. Consequently, on
September 23, 1971, the Court of Appeals, Special Eight Division (composed of Justices Ramon 0.
Nolasco, Andres Reyes and Manuel P. Barcelona), issued a resolution considering the case as
submitted for decision without appellee's brief. More than seven years thereafter, a decision was
rendered by the Court of Appeals, Ninth Division (composed of Justices Carlos L. Sundiam, Samuel
F. Reyes and Pacifico P. de Castro now Associate Justice of the Supreme Court), the dispositive
portion of which reads as follows:
PREMISES CONSIDERED, the plaintiff-appellant having established her ownership over the three
parcels of land in issue and her possession, including those of her predecessors-in-interest before the
year 1961, the decision appealed from is hereby REVERSED:
(1) Declaring plaintiff-appellant the absolute owner of the three lots in question;
(2) Ordering the defendants to vacate said lots and deliver the possession thereof to the plaintiff-
appellant;
(3) Ordering defendants Aramburos to deliver to plaintiff-appellant 30 sacks of palay from Lot 2361
and 50 sacks of palay from Lot 4725, annually, from 1961 until they vacate or pay their value at
P12.00 per sack;
(4) Ordering defendant Jose Atadero to deliver to plaintiff-appellant 12 sacks of palay from Lot 2360,
annually, from 1961 until he vacates said lot or pay its value at P12.00 per sack and
(5) Ordering defendants to pay the costs.
Petitioners-appellees now assail the decision of the Court of Appeals on the ground of lack of
procedural due process. They contend that they were deprived of their day in court when the appeal
was submitted for decision without their brief. Allegedly they were not able to file their brief because
the respondent-appellant did not furnish them with a copy of the appellant's brief. They further
contend that they did not receive both the resolution of the Court of Appeals dated September 23,
1971, which considered the case as submitted for decision without appellee's brief, as well as the
decision of said court dated December 28, 1978, and that it was only on May 9, 1979, that they
learned of the judgment of said court when the Deputy Provincial Sheriff of Albay served upon them a
copy of the writ of execution enforcing said judgment.
On June 15, 1979, We required the respondents to comment on the petition and issued an order
temporarily restraining the Provincial Sheriff of Albay from enforcing the writ of execution issued by
the Court of First Instance of Albay .
Respondents filed their comment on the petition on August 3, 1979. Denying petitioners' claim of lack
of procedural due process, respondents allege that the counsel for the petitioners-appellees were
furnished with copies of the appellant's brief per registry receipts nos. 6724 and 6725 (Quiapo,
Manila) dated January 20, 1971, which were filed with the Court of Appeals along with the appellant's
brief and were attached to the Rollo of the appealed case. Respondents further noted that the
counsel for petitioners-appellees likewise received copies of the Court of Appeals' resolution dated
September 23, 1971, and of its decision dated December 28, 1978, per registry return cards attached
to the Rollo of the case which show receipt by the authorized representatives of the petitioners-
appellees' counsel of the said resolution and decision on October 7, 1971, and January 10, 1979,
respectively. Respondents finally contend that since the petitioners-appellees did not appeal from the
decision of the Court of Appeals nor move for reconsideration thereof, said decision became final and
executory and that, consequently, the execution of said decision is in order and should not be
restrained by this Court. Accordingly, respondents pray that the temporary restraining order be lifted
and that the petition be denied for lack of merit.
On December 7, 1979, We required the petitioners to file a reply to the comment of the respondents.
Petitioners, through their counsel, Atty. Delfin de Vera, filed their reply on January 17, 1980, wherein
they reiterated their claim that their former counsel, Atty. Antonio C. Alfane, never received a copy of
the appellant's brief and of the Court of Appeals' resolution and decision dated September 23, 1971
and December 28, 1978, respectively.
On April 30, 1980, We required the Court of Appeals to ascertain carefully the allegations of the
petitioners regarding the non-service of the appellant's brief and of the resolution and decision of the
said Court and to report on the same without unnecessary delay. In compliance therewith, the
Division Clerk of Court of the Ninth Division of the Court of Appeals, Atty. Arturo A. Marave, submitted
a report on May 27, 1980, stating that:
1. The brief for the plaintiff-appellant filed with this Court on January 26, 1971 does not have a
registry return receipt from petitioners' counsel attached to it. Said brief bears only the registry return
receipt from Atty. Jose Atadero. However, attached to the same brief are two (2) registry receipts
bearing numbers 6724 and 6725, both dated January 26, 1971, ostensibly for the two opposing
counsels. (p. 90, Rollo).
2. The Resolution of this Court dated September 23, 1971 considering the case submitted for
decision without defendants-appellees' brief was received by Attys. Antonio Alfane and Delfin de Vera
on October 7, 1971 per registry return receipt attached to the back of resolution (p. 100, Rollo). Copy
of said registry return receipt is attached hereto as Annex 'A' and made an integral part hereof.
3. The decision of this Court, incidentally, was received by counsel for petitioner on January 10, 1979,
as evidenced by the registry return receipt, copy of with is attached hereto and made an integral part
hereof as Annex 'B'.
On June 11, 1980, We required the Division Clerk of Court of the Court of Appeals to submit his
report over the signature of Justice Carlos L. Sundiam, the ponente of the assailed decision of the
Court of Appeals.
On June 19, 1980, Atty. Delfin de Vera, counsel for the petitioners, filed a manifestation stating that
Atty. Antonio Alfane was the counsel for the petitioners in the Court of Appeals and that neither he
nor said Atty. Alfane received the registered communications (resolution and decision) covered by
annexes "A" and "B" of the report of the Division Clerk of Court of the Court of Appeals. Noting said
manifestation, We ordered Justice Carlos L. Sundiam on July 16, 1980, to submit a comprehensive
and reasoned report as required in the resolution of June 11, 1980, in relation to the resolution of
April 30, 1980, taking into consideration the statements contained in the manifestation. In compliance
therewith, Justice Carlos L. Sundiam filed on September 1, 1980, his comment. He reproduced in
said comment the report of the Division Clerk of Court and noted further that since the resolution and
decision of the Court of Appeals were sent to the petitioners-appellees' counsel thru a government
agency, the postal services of the country, it may be presumed, pursuant to Sec. 5 (m), Rule 131 of
the Rules of Court that the postmaster of Legaspi City performed his official duties and delivered the
mail matter to the authorized representatives of the addressees.
The only issue to be resolved in this special civil action for certiorari, mandamus and prohibition is
whether or not the herein petitioners were deprived of procedural due process when the Court of
Appeals decided CA-G.R. No. 41251-R without their briefs as the appellees therein.
We are inclined to believe petitioners' allegation that they were not served with a copy of the
appellant's brief. For it must be observed that the duty of proving service of the appellant's brief upon
the appellee lies with the appellant, the private respondent herein, who, regretably, failed to comply
with the same. Section 10, Rule 14 of the Rules of Court provides
SEC 10. PROOF OF SERVICE. Proof of personal service shall consist of a written admission of
the party served, or the affidavit of the party serving, containing a full statement of the date, place and
manner of service, ... If service is made by registered mail, proof shall be made by such affidavit and
the registry receipt issued by the mailing office. The registry return card shall be filed immediately
upon receipt thereof by the sender, or in lieu thereof the letter unclaimed together with the certified or
sworn copy of the notice given by the postmaster to the addressee.
Conformably with the foregoing provision, sufficient proof of service of the appellant's brief upon the
appellees, which was allegedly effected thru registered mail, consists of: (1) the affidavit of the party
serving, containing a full statement of the date, place and manner of service; (2) the registry receipt
issued by the mailing office; and (3) the registry return card or, in lieu thereof, the letter unclaimed
together with the certified or sworn copy of the notice given by the postmaster to the addressee. The
records of the case, however, reveal that only the registry receipts allegedly issued by the mailing
office were presented by the respondent-appellant as proof of service of her brief upon petitioners-
appellees. Such registry receipts cannot be considered as sufficient proof of service of the appellant's
brief. Firstly, to hold otherwise would be to disregard the explicit requirements of the aforequoted
provision of the Rules of Court. Secondly, said registry receipts are evidence of the posting of the
mail matter with the post office of the sender not of the delivery of said mail matter by the post
office of the addressee. Thirdly, the date of actual delivery to the addressee cannot be ascertained
from such registry receipts, And, finally, the possibility of presenting registry receipts covering mail
matters different from those involved in the litigation cannot be discounted. (See: resolution of the
Supreme Court, Second Division, dated May 21, 1980, in G.R. No. 51378 entitled "American
President Lines vs. The Honorable Court of Appeals, et al.")
Since respondent-appellant had not sufficiently proven service of the appellant's brief upon the
petitioners-appellees, it was, therefore, an error on the part of the Court of Appeals to consider the
appeal as submitted for decision without appellees' brief. But such procedural defect was not fatal
when, as in this case, the party adversely affected thereby had sufficient opportunity to seek
correction of such error. For, here, the petitioners-appellees' counsel were notified of the resolution of
the Court of Appeals which considered the case as submitted for decision without appellees' brief
more than seven years before the rendition of the decision. (The registry return card attached to page
100 of the Rollo of CA-G.R. No. 41251-R shows receipt by the authorized agent of petitioners-
appellees' counsel, Attys. Antonio Alfane and Delfin de Vera, of the subject resolution of the Court of
Appeals on October 7, 1971; the decision of the Court of Appeals was promulgated on December 28,
1978.) Certainly, such length of time was more than sufficient for petitioners-appellees to seek
reconsideration of the resolution of the Court of Appeals. But, this, they failed to do. And such failure
could only be construed as a waiver by petitioners-appellees of their right to file their brief in said
appeal and their consent to have the case decided on the basis of the records thereof which were
elevated to the appellate court and of whatever pleadings already filed with said court.
Petitioners-appelles coucel had persistently denied having received the subject resolution of the
Court of Appeals and claimed that the signature appearing on the registry return card, purportedly
that of their authorized agent, was unknown to them. But such naked denials cannot stand in the face
of the presumption established in Sec. 5(m) of Rule 131 of the Rules of Court that official duties had
been regularly performed his official duties and delivered the subject resolution to the authorized
representative of petitioners-appelles' counsel.
As the foregoing onbservations likewise hold true with respect to the decision of the Court of Appeals
which appears to have been received by the authorized representaive of petitioners-appelles' counsel
on January 10, 1979, per registry return card attached to page 101 of the rollo of CA-G.R. No. 41251-
R, it follows that said decision become final and executory on January 25, 1979. Consequently, the
executory of said decision is in order.
WHEREFORE, the temporary restraining order issued on June 15, 1979, is hereby lifted and the
petition for certiorari, mandamus and prohibition is hereby denied for lack of merit. Cost against
petitioners.
SO ORDERED.
Barredo (Chairman), Aquino, Concepcion, Jr., and Guerero, * JJ., concur.
De Castro, J., took no part.
G.R. No. 132007 August 5, 1998
SOLAR TEAM ENTERTAINMENT, INC., petitioner,
vs.
HON. HELEN BAUTISTA RICA-FORT, in her capacity as Presiding Judge of the Regional Trial
Court of Paraaque, Metro Manila (Branch 260), TEAM IMAGE ENTERTAINMENT, INC., FELIX
S. CO, JEFFREY C. CAL, and KING CUISIA, respondents.

DAVIDE, JR., J.:

At issue is whether respondent judge committed grave abuse of discretion amounting to lack or
excess of jurisdiction in denying petitioner's motion to expunge private respondents' answer with
counterclaims on the ground that said pleading was not served personally; moreover, there was no
written explanation as to why personal service was not accomplished, as required by Section 11 of
Rule 13 of the 1997 Rules of Civil Procedure.
The antecedents are not disputed.
On 10 July 1997, petitioner, as plaintiff, filed before the Regional Trial Court (RTC) in Paraaque,
Metro Manila, a complaint for recovery of possession and damages with prayer for a writ of
replevin 1 against herein private respondents. The case was docketed as Civil Case No. 97-0304 and
was assigned to Branch 260 of said court, presided over by public respondent Judge Helen Bautista-
Ricafort.
Summonses and copies of the complaint were forthwith served on private respondents. On 25 July
1997, their counsel filed a notice of appearance with urgent ex-parte motion for extension of time to
plead, 2 which the court granted in its order of 4 August 1997. 3
On 8 August 1997, private respondents, as defendants, filed their "Answer (with Counterclaims).'' 4 A
copy thereof was furnished counsel for petitioner by registered mail; however, the pleading did not
contain any written explanation as to why service was not made personally upon petitioner-plaintiff,
as required by Section 11 of Rule 13 of the 1997 Rules of Civil Procedure.
On 11 August 1997, petitioner filed a motion to expunge the "Answer (with Counterclaims)" and to
declare herein private respondents in default, 5 alleging therein that the latter did not observe the
mandate of the aforementioned Section 11, and that there was:
[A]bsolutely no valid reason why defendant[s] should not have personally served plaintiff's . . .
counsel with [a] copy of their answer [as] (t)he office of defendant's (sic) counsel, Atty. Froilan
Cabaltera, is just a stone [sic] throw away from the office of [petitioner's] counsel, with an estimate
(sic) distance of about 200 meters more or less.
Petitioner further alleged that the post office was "about ten (10) times farther from the office of Atty.
Cabaltera,"
On 15 August 1997, private respondents filed their opposition 6 to the abovementioned motion,
alleging that petitioner's "rigid and inflexible reliance on the provisions of Section 11, Rule 13 . . . is an
adventitious resort to technicality and is contrary to Section 6 of Rule 3 . . . which admonishes that
said Rules 'shall be liberally construed in order to promote their objective in securing a just, speedy
and inexpensive disposition of [e]very action and proceeding;'" and that Section 11, Rule 13
notwithstanding, private respondents "religiously complied with [Section 5 of Rule 13] by personally
present[ing] to the clerk of court their said Answer . . . furnishing a copy thereof to the counsel for
[petitioner] by way of registered mail."
On 8 September 1997, public respondent Judge Bautista-Ricafort issued an order 7 stating that under
Section 11 of Rule 13 "it is within the discretion of the [trial court] whether to consider the pleading as
filed or not," and denying, for lack of merit, petitioner's motion to expunge the "Answer (with
Counterclaims)" and to declare private respondents in default.
Petitioner immediately moved for reconsideration 8 of the order, but public respondent Judge
Bautista-Ricafort denied this motion in her order 9 of 17 November 1997. The order justified the denial
in this wise:
Sec. 6 [of] Rule 1 of the 1997 Rules of Civil Procedure ordains that the Rules shall be liberally
construed in order to promote their objective of securing a just, speedy and inexpensive disposition of
every action and proceeding.
Liberal construction of the rules and the pleading is the controlling principle to effect substantial
justice.
As pointed out by the Supreme Court in Alonso vs. Villamor, 16 Phil. 315, "the error in this case is
purely technical. To take advantage of it for other purposes than to cure it, does not appeal to a fair
sense of justice. Its presentation as fatal to plaintiff a [sic] case smacks of skill rather than right. A
litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle
art of movement and position, entraps and destroys the other. It is rather, a contest in which each
contending party fully and fairly lays before the Court the facts in issue and then, brushing aside as
wholly trivial and indecisive all imperfections or form of technicalities of procedure, asks that justice
be done upon the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust."
While it is desirable that the above Rules be faithfully and even meticulously observed, courts should
not strict about procedural lapses that do not really impair the proper administration of justice.
Furthermore, it is well settled that litigations should, as much as possible be decided on their merits
and not on technicalities.
Petitioner thus filed the instant special civil action of certiorari, contending that public respondent
Judge Bautista-Ricafort committed grave abuse of discretion amounting to lack or excess of
jurisdiction when she admitted private respondents' "Answer (with Counterclaims)" notwithstanding
private respondents' clear, admitted and inexcusable violation of Section 11, Rule 13 of the 1997
Rules of Civil Procedure, in that: (a) the "Answer (with Counterclaims)" was not served personally
upon petitioner's counsel despite the undisputed fact that the offices of private respondents' counsel
and that of petitioner's counsel are only about 200 meters away from each other; and (b) the Answer
did not contain any explanation as to why the answer was not served personally.
In their Comment, filed in compliance with the resolution of 2 February 1998, and to which petitioner
filed a Reply, private respondents aver that public respondent Judge Bautista-Ricafort correctly
admitted private respondents' "Answer (with Counterclaims)" in light of Section 6, Rule 1 of the 1997
Rules of Civil Procedure; that Section 11 of Rule 13 begins with the phrase "whenever practicable,"
thereby suggesting that service by mail may still be effected depending on the relative priority of the
pleading sought to be filed; and when service is not done personally, it is more prudent and judicious
for the courts to require a written explanation rather than to expunge the pleading outright or consider
the same as not being filed.
In view of the importance of the issue raised, which is, undoubtedly, one of the first impression, the
Court resolved to give due course to the petition and consider it submitted for decision on the basis of
the pleadings filed by the parties.
Sec. 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes two modes of service of pleadings,
motions, notices, orders, judgments and other papers, namely: (1) personal service; and (2) service
by mail. The first is governed by Section 6, while the second, by Section 7 of said Rule. If service
cannot be done either personally or by mail, substituted service may be resorted to under Section 8
thereof.
Pursuant, however, to Section 11 of Rule 13, service and filing of pleadings and other papers must,
whenever practicable, be done personally; and if made through other modes, the party concerned
must provide a written explanation as to why the service or filing was not done personally. The
section reads:
Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except with respect to papers emanating from
the court, a resort to other modes must be accompanied by a written explanation why the service or
filing was not done personally. A violation of this Rule may be cause to consider the paper as not
filed. (n)
Note that Section 11 refers to both service of pleadings and other papers on the adverse party or his
counsel as provided for in Sections 6, 7 and 8; and to the filing of pleadings and other papers in court.
Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action or
resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays
likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal
service. Likewise, personal service will do away with the practice of some lawyers who, wanting to
appear clever, resort to the following less than ethical practices: (1) serving or filing pleadings by mail
to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for
instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that
the registered parcel containing the pleading of or other paper from the adverse party may be
claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby
causing undue delay in the disposition of such pleading or other papers.
If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring
personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to
consider a pleading or paper as not filed if the other modes of service or filing were resorted to and no
written explanation was made as to why personal service was not done in the first place. The
exercise of discretion must, necessarily, consider the practicability of personal service, for Section 11
itself begins with the clause "whenever practicable."
We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil
Procedure, personal service and filing is the general rule, and resort to other modes of service and
filing, the exception. Henceforth, whenever personal service or filing is practicable, in light of the
circumstances of time, place and person, personal service or filing is mandatory. Only when personal
service or filing is not practicable may resort to other modes be had, which must then be
accompanied by a written explanation as to why personal service or filing was not practicable to begin
with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of
the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading
sought to be expunged for violation of Section 11. This Court cannot rule otherwise, lest we allow
circumvention of the innovation introduced by the 1997 Rules in order to obviate delay in the
administration of justice.
Here, the proximity between the offices of opposing counsel was established; moreover, that the
office of private respondents' counsel was "ten times farther" from the post office than the distance
separating the offices of opposing counsel. Of course, proximity would seem to make personal
service most practicable, but exceptions may nonetheless apply. For instance, where the adverse
party or opposing counsel to be served with a pleading seldom reports to office and no employee is
regularly present to receive pleadings, or where service is done on the last day of the reglementary
period and the office of the adverse party or opposing counsel to be served is closed, for whatever
reason.
Returning, however, to the merits of this case, in view of the proximity between the offices of
opposing counsel and the absence of any attendant explanation as to why personal service of the
answer was not effected, indubitably, private respondents' counsel violated Section 11 of Rule 13 and
the motion to expunge was prima facie meritorious. However, the grant or denial of said motion
nevertheless remained within the sound exercise of the trial court's discretion. Thus, as guided by
Section 6, Rule 1 of the 1997 Rules of Civil Procedure, which ordains that the Rules shall be liberally
construed in order to promote their objective of securing a just, speedy and inexpensive disposition of
every action or proceeding, as well as by the dictum laid down in Alonso v. Villamor, 16 Phil. 315
[1910], the trial court opted to exercise its discretion in favor of admitting the "Answer (with
Counterclaims)," instead of expunging it from the record.
To our mind, if motions to expunge or strike out pleadings for violation of Section 11 of Rule 13 were
to be indiscriminately resolved under Section 6 of Rule 1 or Alonzo v. Villamor and other analogous
cases, then Section 11 would become meaningless and its sound purpose negated. Nevertheless, we
sustain the challenged ruling of the trial court, but for reasons other than those provided for in the
challenged order.
The 1997 Rules of Civil Procedure took effect only on 1 July 1997, while the questioned "Answer
(with Counterclaims)" was filed only on 8 August 1997, or on the 39th day following the effectivity of
the 1997 Rules. Hence, private respondents' counsel may not have been fully aware of the
requirements and ramifications of Section 11, Rule 13. In fact, as pointed out by petitioner's counsel,
in another case where private respondents' counsel was likewise opposing counsel, the latter
similarly failed to comply with Section 11.
It has been several months since the 1997 Rules of Civil Procedure took effect. In the interim, this
Court has generally accommodated parties and counsel who failed to comply with the requirement of
a written explanation whenever personal service or filing was not practicable, guided, in the exercise
of our discretion, by the primary objective of Section 11, the importance of the subject matter of the
case, the issues involved and the prima facie merit of the challenged pleading. However, as we have
in the past, for the guidance of the Bench and Bar, strictest compliance with Section 11 of Rule 13 is
mandated one month from promulgation of this Decision.
WHEREFORE, the instant petition is DISMISSED considering that while the justification for the denial
of the motion to expunge the "Answer (with Counterclaims)" may not necessarily be correct, yet, for
the reasons above stated, the violation of Section 11 of Rule 13 may be condoned.
No pronouncement as to costs.
SO ORDERED.
Vitug, Panganiban and Quisumbing, JJ., concur.
Bellosillo, J., Please see Separate Opinion.

Separate Opinions

BELLOSILLO, J., separate opinion;

This case involves the proper application of Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure,
which took effect 1 July 1997.
Restating the facts, on 10 July 1997 petitioner herein filed against private respondents a Complaint
(For: Recovery of Possession and Damages with Prayer for Writ of Replevin) in the Regional Trial
Court of Paraaque against private respondents. On 8 August 1997, after seeking an extension of ten
(10) days from the expiration of its reglementary period to respond, private respondents filed
their Answer (with Counterclaims) furnishing counsel for petitioner copy thereof by registered mail.
Alleging violation of Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure, petitioner filed a Motion to
Expunge Answer with Counterclaim and Declare Defendants in Default for the reason that
the Answer was not served personally on its counsel but only by registered mail.
On 8 September 1997 respondent Judge Helen Bautista Ricafort of RTC-Br. 260, Paraaque City,
denied the motion to expunge as well as to reconsider her denial "for lack of merit," holding that under
Sec. 11 of Rule 13 "it is within the discretion of the Court whether to consider a pleading as filed or
not."
Indeed, the trial court took too lightly Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure which
provides
Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except with respect to papers emanating from
the court, a resort to other modes must be accompanied by a written explanation why the service or
filing was not done personally. A violation of this Rule may be cause to consider the paper as not
filed.
I find it difficult to agree with respondent Judge that under the above provision it is solely within the
discretion of the trial court whether to consider the pleading as filed or not. Section 11 requires that
service and filing of pleadings and other papers shall be done personally, whenever practicable. In
other words, when personal service is not done, the party who fails to comply with the requirement
must explain why. This makes personal service and filing of pleadings mandatory, especially as the
rule specifically uses the word "shall," unless personal service and filing are shown to be impractical.
At this stage, the exercise of discretion by the judge does not yet come into play.
In case personal service and filing are neither practical nor feasible then and only then can the
parties avail of other modes of service and filing, e.g., by registered mail. But resort to other modes
must be accompanied by a written explanation why service and filing are not done personally. From
that explanation, the judge will then determine whether personal service and filing are indeed
impractical so that resort to other modes may be made. It is only at this stage when the judge may
properly exercise his discretion and only upon the explanation given.
In the case before us, private respondents gave no explanation why they resorted to service by
registered mail and not by personal service. Absent any explanation, respondent judge was without
any hypothesis on which to anchor her finding and conclusion that personal service was not
practicable. In such a situation, respondent judge could not exercise any discretion and,
consequently, could not deny petitioner's motion to expunge the answer "for lack of merit."
Respondent judge did not even cite a single reason why personal service was not availed of by
private respondents. Consequently, the conclusion that the motion to strike out private respondents'
answer filed by petitioner should be denied "for lack of merit," was without any basis, thus amounting
to grave abuse of discretion on the part of respondent judge.
To emphasize, the court's discretion can only be exercised soundly if there exists some factual basis
for it. The explanation required of the parties serves as the authority for the judge's exercise of
discretion. Without any explanation, the judge cannot wield any discretion, much less dismiss the
motion to expunge by simply saying that it lacks merit.
Thus, speaking of discretionary power of a trial judge, I said as early as 2 October 1987 in Rayat
Export Industries, Inc. v. Lorenzana 1 that
Where no explanation whatsoever was given justifying the absence of a party whose presence was
required, hence, there was no factual milieu upon which discretion may be exercised, the
discretionary power of the court to declare him non-suited or as in default becomes mandatory.
Stated differently, where no explanation is offered to justify resort to service of pleading by mail, or
other modes of service (and filing for that matter), in lieu of the preferred personal service, hence, no
factual milieu is provided upon which judicial discretion may be brought into play, the discretionary
power of the court to expunge the pleading becomes mandatory and a disregard thereof constitutes
grave abuse of discretion.
Sec. 11 of Rule 13 provides for priorities in the modes of service and filing of pleadings. By priority we
mean an order of preference in the service thereof, such that the first alternative must be availed of,
and only upon its non-availability may the second and succeeding options be resorted to. Admittedly,
the offices of petitioner's counsel and that of private respondents are located just about two hundred
(200) meters from each other the office of petitioner's counsel at 235 Salcedo St., Legaspi Village,
Makati City, and that of private respondents' counsel at 132 Amorsolo St., Legaspi Village, Makati
City. For lack of any explanation from private respondents, we cannot determine the reason why they
served and filed their pleading by registered mail instead of personally serving and filing them.
Personal service and filing are obviously preferred so as to fasttrack the decongestion of court
dockets. No less than our present Constitution mandates the promulgation of rules that shall provide
a simplified and inexpensive procedure for the speedy disposition of cases. 2 In fact, the 1997 Rules
of Civil Procedure is required to be construed to promote its objective of securing a just, expeditious
and inexpensive disposition of every action and proceeding; hence, strict compliance with the rules is
strongly favored. Taking judicial notice of the inadequacy of our postal service, it is to the advantage
of both parties if they avail of personal service and filing of pleadings in order to resolve their case
soonest.
Prescinding from the foregoing, I cannot agree with the ponencia that "the grant or denial of said
motion (to expunge) nevertheless remains within the sound exercise of the trial court's
discretion." Alonso v. Villasor 3 upon which the ponencia is premised cannot be invoked. The issue
in Alonso involved merely a defect in form, a defect which did not prejudice the substantial rights of
the opposing party. In the instant case, the deviation is not merely formal. It involves non-
compliance with the mandatory requirement of Sec. 11 of Rule 13.
I ask: Would it not have been more appropriate and proper for respondent judge to start by requiring
compliance with Sec. 11, Rule 13, and grant the motion of petitioner to expunge the answer for
obvious non-compliance therewith which requires personal service, and on a motion for
reconsideration by private respondents explaining the non-observance of the rule, if such motion is
filed, grant reconsideration in the exercise of the court's discretion? At least the message would have
been clear that the rule should first and foremost be obeyed before the same may be relaxed upon
exercise of discretion based on a reasonable explanation.
While I am constrained to yield for the moment to the majority pro hac vice in view of the recency of
the rule concerned, I am afraid we might be sending the wrong signals to our trial judges that a rule of
procedure, particularly Sec. 11, Rule 13, may be taken lightly, if not ignored completely, despite its
mandatory character and its publication in a newspaper of general circulation that it was to take effect
1 July 1997 or a year ago. Observance of the 1997 Rules of Civil Procedure, I submit, was never
meant to be a useless exercise, otherwise, the dedicated efforts of its architects would be fruitless.
Such lackadaisical attitude in the proper observance of the rules of procedure, regretfully, is one of
the culprits in docket congestion and delay.

Separate Opinions
BELLOSILLO, J., separate opinion;
This case involves the proper application of Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure,
which took effect 1 July 1997.
Restating the facts, on 10 July 1997 petitioner herein filed against private respondents a Complaint
(For: Recovery of Possession and Damages with Prayer for Writ of Replevin) in the Regional Trial
Court of Paraaque against private respondents. On 8 August 1997, after seeking an extension of ten
(10) days from the expiration of its reglementary period to respond, private respondents filed
their Answer (with Counterclaims) furnishing counsel for petitioner copy thereof by registered mail.
Alleging violation of Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure, petitioner filed a Motion to
Expunge Answer with Counterclaim and Declare Defendants in Default for the reason that
the Answer was not served personally on its counsel but only by registered mail.
On 8 September 1997 respondent Judge Helen Bautista Ricafort of RTC-Br. 260, Paraaque City,
denied the motion to expunge as well as to reconsider her denial "for lack of merit," holding that under
Sec. 11 of Rule 13 "it is within the discretion of the Court whether to consider a pleading as filed or
not."
Indeed, the trial court took too lightly Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure which
provides
Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except with respect to papers emanating from
the court, a resort to other modes must be accompanied by a written explanation why the service or
filing was not done personally. A violation of this Rule may be cause to consider the paper as not
filed.
I find it difficult to agree with respondent Judge that under the above provision it is solely within the
discretion of the trial court whether to consider the pleading as filed or not. Section 11 requires that
service and filing of pleadings and other papers shall be done personally, whenever practicable. In
other words, when personal service is not done, the party who fails to comply with the requirement
must explain why. This makes personal service and filing of pleadings mandatory, especially as the
rule specifically uses the word "shall," unless personal service and filing are shown to be impractical.
At this stage, the exercise of discretion by the judge does not yet come into play.
In case personal service and filing are neither practical nor feasible then and only then can the
parties avail of other modes of service and filing, e.g., by registered mail. But resort to other modes
must be accompanied by a written explanation why service and filing are not done personally. From
that explanation, the judge will then determine whether personal service and filing are indeed
impractical so that resort to other modes may be made. It is only at this stage when the judge may
properly exercise his discretion and only upon the explanation given.
In the case before us, private respondents gave no explanation why they resorted to service by
registered mail and not by personal service. Absent any explanation, respondent judge was without
any hypothesis on which to anchor her finding and conclusion that personal service was not
practicable. In such a situation, respondent judge could not exercise any discretion and,
consequently, could not deny petitioner's motion to expunge the answer "for lack of merit."
Respondent judge did not even cite a single reason why personal service was not availed of by
private respondents. Consequently, the conclusion that the motion to strike out private respondents'
answer filed by petitioner should be denied "for lack of merit," was without any basis, thus amounting
to grave abuse of discretion on the part of respondent judge.
To emphasize, the court's discretion can only be exercised soundly if there exists some factual basis
for it. The explanation required of the parties serves as the authority for the judge's exercise of
discretion. Without any explanation, the judge cannot wield any discretion, much less dismiss the
motion to expunge by simply saying that it lacks merit.
Thus, speaking of discretionary power of a trial judge, I said as early as 2 October 1987 in Rayat
Export Industries, Inc. v. Lorenzana 1 that
Where no explanation whatsoever was given justifying the absence of a party whose presence was
required, hence, there was no factual milieu upon which discretion may be exercised, the
discretionary power of the court to declare him non-suited or as in default becomes mandatory.
Stated differently, where no explanation is offered to justify resort to service of pleading by mail, or
other modes of service (and filing for that matter), in lieu of the preferred personal service, hence, no
factual milieu is provided upon which judicial discretion may be brought into play, the discretionary
power of the court to expunge the pleading becomes mandatory and a disregard thereof constitutes
grave abuse of discretion.
Sec. 11 of Rule 13 provides for priorities in the modes of service and filing of pleadings. By priority we
mean an order of preference in the service thereof, such that the first alternative must be availed of,
and only upon its non-availability may the second and succeeding options be resorted to. Admittedly,
the offices of petitioner's counsel and that of private respondents are located just about two hundred
(200) meters from each other the office of petitioner's counsel at 235 Salcedo St., Legaspi Village,
Makati City, and that of private respondents' counsel at 132 Amorsolo St., Legaspi Village, Makati
City. For lack of any explanation from private respondents, we cannot determine the reason why they
served and filed their pleading by registered mail instead of personally serving and filing them.
Personal service and filing are obviously preferred so as to fasttrack the decongestion of court
dockets. No less than our present Constitution mandates the promulgation of rules that shall provide
a simplified and inexpensive procedure for the speedy disposition of cases. 2 In fact, the 1997 Rules
of Civil Procedure is required to be construed to promote its objective of securing a just, expeditious
and inexpensive disposition of every action and proceeding; hence, strict compliance with the rules is
strongly favored. Taking judicial notice of the inadequacy of our postal service, it is to the advantage
of both parties if they avail of personal service and filing of pleadings in order to resolve their case
soonest.
Prescinding from the foregoing, I cannot agree with the ponencia that "the grant or denial of said
motion (to expunge) nevertheless remains within the sound exercise of the trial court's
discretion." Alonso v. Villasor 3 upon which the ponencia is premised cannot be invoked. The issue
in Alonso involved merely a defect in form, a defect which did not prejudice the substantial rights of
the opposing party. In the instant case, the deviation is not merely formal. It involves non-
compliance with the mandatory requirement of Sec. 11 of Rule 13.
I ask: Would it not have been more appropriate and proper for respondent judge to start by requiring
compliance with Sec. 11, Rule 13, and grant the motion of petitioner to expunge the answer for
obvious non-compliance therewith which requires personal service, and on a motion for
reconsideration by private respondents explaining the non-observance of the rule, if such motion is
filed, grant reconsideration in the exercise of the court's discretion? At least the message would have
been clear that the rule should first and foremost be obeyed before the same may be relaxed upon
exercise of discretion based on a reasonable explanation.
While I am constrained to yield for the moment to the majority pro hac vice in view of the recency of
the rule concerned, I am afraid we might be sending the wrong signals to our trial judges that a rule of
procedure, particularly Sec. 11, Rule 13, may be taken lightly, if not ignored completely, despite its
mandatory character and its publication in a newspaper of general circulation that it was to take effect
1 July 1997 or a year ago. Observance of the 1997 Rules of Civil Procedure, I submit, was never
meant to be a useless exercise, otherwise, the dedicated efforts of its architects would be fruitless.
Such lackadaisical attitude in the proper observance of the rules of procedure, regretfully, is one of
the culprits in docket congestion and delay
G.R. No. L-48375 August 13, 1986
JOSE C. CARIAGA, JR. AND MARIETA CARIAGA, petitioners,
vs.
THE HON. ANTONIO Q. MALAYA, CAROLINA ALMONTE CARIAGA-SOON AND ANA ALMONTE
CARIAGA, respondents.
Antonio M. Baez for petitioners.
Oscar A. Inocentes & Associates Law Office for private respondents.

PARAS, J.:
This is a petition for certiorari to review and to set aside two orders of the respondent Judge dated
January 16, 1978 and April 11, 1978 giving validity to the service of summons by registered mail upon
the defendants Jose C. Cariaga, Jr. and Marieta Cariaga-Celis (petitioners herein), who are residing
abroad. Petitioners aver that the issuance of said orders by the respondent Judge is tantamount to
grave abuse of discretion.
The antecedent facts of the case at bar are briefly summarized as follows:
On October 6, 1976, plaintiffs (private respondents herein) Ana Almonte Cariaga Soon filed in her
behalf and in behalf of her minor daughter Carolina, an action for (1) Annulment of a Deed of Extra-
Judicial Partition of Real Property, (2) Cancellation of Transfer Certificate of Title (TCT), (3) Recovery
of Real Property with damages, in the Court of First Instance (CFI) of Laguna, Branch IV, now known
as the Regional Trial Court (RTC), docketed as Civil Case No. SC-1474. All defendants in said action
filed their answer with counterclaim with the exception of defendants (petitioners herein) Jose C.
Cariaga Jr. and Marieta Cariaga-Celis who were both residing abroad and were not served with
summons. The lower court upon motion of plaintiffs granted them leave to effect extra-territorial
service of summons upon said defendants pursuant to Secs. 7, 17 and 18 of Rule 14 of the New
Rules of Court. (Annex "A", P. 9, Record). Accordingly, summonses with copies of the complaint were
served to the defendants by registered mail abroad (Guam and U.S.A.) by the Clerk of Court at the
instance of plaintiffs (Annex "B" and "C").
On August 30, 1977, defendants, who are residents of the Philippines filed a motion to set aside the
said summons and to declare the service of summons abroad by registered mail as null and void, it
being allegedly irregular and unauthorized under the provisions of Rule 14 of the Rules of Court
(Annex D ") to which motion plaintiffs filed their opposition.
Acting on the issue the lower court ruled in this wise:
ORDER
It appearing that but for the short period of fifteen (15) days from date of receipt of summons within
which to answer given defendants Jose C. Cariaga, Jr. and Marietta C. Cariaga, who reside abroad,
there was substantial compliance with Section 17 as related to Section 7 both of Rule 14 of the New
Rules of Court in the service of said summons on said defendants, for LACK OF MERIT, the
defendants' MOTION TO SET ASIDE SUMMONSES is, as it is, hereby DENIED.
Defendants Jose C. Cariaga, Jr., and Marietta C. Cariaga, having already received copies of plaintiffs'
Complaint with the service of summons on them, said defendants are given NINETY (90) days from
receipt of this Order within which to file responsive pleadings. "Let copies of this Order be served on
the said defendants by registered mail with return cards at the instance of the plaintiffs.
IT IS SO ORDERED.
Santa Cruz, Laguna, January 16, 1978.
Sgd. ANTONIO Q. MALAYA
ANTONIO Q. MALAYA
Judge
(Annex F, p. 21, Record)
On March 31, 1978, defendants (petitioner herein), residing abroad, by special appearance and thru
counsel filed their motion to consider the service of summons upon, them by registered mail as null
and void. On April 11, 1978, the lower court issued another order reading as follows:
ORDER
Finding on merit to defendants' motion filed on March 31, 1978, through counsel to consider the
service of summons to them by registered mail to be null and void because they are residing abroad,
considering the findings of this Court as expounded in its January 16, 1978 Order, said motion is, as it
is, hereby DENIED.
IT IS SO ORDERED.
Santa Cruz, Laguna, April 11, 1978.
(SGD.) IRINEO V. MENDOZA
T/IRINEO V. MENDOZA
Judge
(Annex " H ", p. 25 Record)
The main issue on appeal is whether the service of summons by registered mail upon defendants in
the case at bar is one which is contemplated within the principles laid down in the provisions of Secs.
17, 7 and 22, Rule 14 of the New Rules of Court to wit:
Section 17. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual
or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant
from any interest therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal service as under Section
7; or by publication in a newspaper of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be
less than sixty (60) days after notice, within which the defendant must answer.
Sec. 7. Personal service of summons. The summons shall be served by handing a copy thereof to the
defendant in person, or if he refuses to receive it, by tendering it to him.
Sec. 22. Proof of service by registered mail-service by registered mail under this rule may be proved
by a certificate of the sheriff or affidavit of the person especially authorized by the court, showing that
a copy of the summons and papers attached thereto, inclosed in an envelope and addressed to the
defendant, with postage prepaid, has been mailed, to which certificate or affidavit the registry receipt
and return card shall be attached.
Questioning the validity of the aforequoted orders dated January 16, 1978 and April 11, 1978,
petitioners aver that the lower court committed an error in allowing service of summons by registered
mail, arguing that such mode must be coupled with publication in a newspaper of general circulation
which was lacking in the case at bar. Petitioners' contention holds no water.
Under Section 17, extraterritorial service of summons is proper: (1) when the action affects the
personal status of the plaintiff; (2) when the action relates to, or the subject of which is, property
within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3)
when the relief demanded in such an action consists, wholly or in part, in excluding the defendant
from any interest in property located in the Philippines; and (4) when defendant non-resident's
property has been attached within the Philippines (Sec. 17, Rule 14, Rules of Court).
In any of such four cases, the service of summons may, with leave of court, be effected out of the
Philippines in three ways: (1) by personal service; (2) by publication in a newspaper of general
circulation in such places and for such time as the court may order, in which case a copy of the
summons and order of the court should be sent by registered mail to the last known address of the
defendant; and (3) in any other manner which the court may deem sufficient. The third mode of
extraterritorial service of summons was substantially complied with in this case. (De Midgely v.
Fernandos, 64 SCRA 23, 33, 34).
There is no question that the requirement of due process has been met as shown by the fact that
defendants actually received the summonses and copies of the complaint and as evidenced by the
Registry Return Cards marked as Annex A-1 (page 56-Record) and Annex B-1. Whatever defect
there may have been in the service of summons was aptly corrected by the court a quo in its assailed
order dated January 16, 1978, which gave said defendants ninety (90) days from receipt of order
within which to file their responsive pleadings. Defendants have no reason to complain that they were
unaware of the action filed against them or claim that they were denied due process.
The case of Habana v. Vamenta, et al, L-27091, June 30, 1970, or 33 SCRA 569, cited by the
petitioners in support of their claim has no bearing in the case at bar since in said case service of
summons was never made, even if defendant knew of the case against him, while in the case under
consideration, service of summons was made upon them (although claimed erroneously by them as
defective).
WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED with costs
against the petitioners.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Gutierrez, Jr. JJ., concur.
G.R. No. L-22997 March 15, 1968
PABLO C. MONTALBAN, ET AL., plaintiffs-appellees,
vs.
GERARDO MAXIMO, defendant-appellant.
Jose W. Diokno for plaintiffs-appellees.
Norberto J. Quisumbing for defendant-appellant.
SANCHEZ, J.:
Chronologically, following are the events that spawned the present case:
August 15, 1958. Plaintiffs commenced suit1 against Fr. Gerardo Maximo who, according to the
complaint, was residing at the parish church at Concepcion, Malabon, Rizal. Plaintiffs' cause of action
for damages sprang from a motor vehicle accident which occurred at Padre Faura St., Manila, on
December 16, 1957. Paul Hershell Montalban, son of plaintiffs, suffered injuries.
August 15, 1958. On this same day that the complaint was filed, summons was served on
defendant Fr. Gerardo Maximo at the parish church of Concepcion, Malabon, Rizal, through Fr.
Arsenio Bautista a priest in the same parish church.
August 23, 1958. Fr. Arsenio Bautista sent a letter (dated August 21) to Macario M. Ofilada,
Clerk of Court of the Court of First Instance of Manila, informing him that defendant Fr. Gerardo
Maximo left for Europe on August 7, and "will be back on the first week of November." Actually, Fr.
Maximo returned from abroad "about the second week of October, 1958"2
September 20, 1958. The lower court declared defendant in default, on plaintiffs' motion of
September 13, 1958.
June 8, 1959. Upon plaintiffs' evidence, the court rendered judgment sentencing defendant to:
1. Pay plaintiff Paul Hershell Montalban the amount of P10,000.00 as actual damages for loss of his
spleen;
2. Pay plaintiff Paul Hershell Montalban the amount of P10,000.00 for loss or impairment of earning
capacity, talents and physical strength;
3. Pay plaintiff Paul Hershell Montalban the amount of P5,000.00 as moral damages;
4. Pay plaintiffs Pablo C. Montalban and Regina Barretto the amount of P5,000.00 as moral
damages;
5. Pay plaintiffs the amount of P1,000.00 as exemplary damages; and
6. Pay plaintiffs attorney's fees [in] the amount of P3,000.00 and the cost of litigation.
December 16, 1959. Plaintiffs themselves wrote defendant Fr. Gerardo Maximo, at the
Malabon Catholic Church, informing the latter of the lower court's decision, giving the data: "Re Civil
Case No. 37202 (in which the foregoing judgment was rendered) Montalban vs. Maximo," quoting
therein the dispositive part of the decision just transcribed, requesting prompt compliance therewith
and suggesting that he communicate with or personally see their lawyer, Jose W. Diokno, at the
latter's address, 332 Regina Building, Escolta, Manila.
December 20, 1959. Defendant, through his legal counsel, Dr. Nicanor T. Santos, answered
the foregoing letter expressing regret that he could not comply with plaintiffs' request, because he
(defendant) was not aware of the said civil case, and that, in the criminal action arising out of the
same incident, said defendant was acquitted by the Municipal Court of Manila. 3
January 14, 1960. Deputy Sheriff Liberato C. Manalo of Rizal notified defendant of the issuance
of the writ of execution dated January 7, 1960, and demanded payment of the amount set forth
therein. The Sheriff's return to the writ shows that in response to such demand, defendant alleged
that he was then "financially hard up" 4 and that the Sheriff found no property that could be subject to
execution.
 January 30, 1962. An alias writ of execution was issued. Copy thereof was received by
defendant on February 9, 1962.
February 1, 1962. The Deputy Sheriff attached and levied on a residential house located in
Caloocan City and purportedly belonging to defendant.
February 20, 1962. Two years and two months after defendant admittedly learned of the lower
court's decision from counsel for plaintiffs herein, said defendant, by counsel, filed a verified motion in
the same case praying for the annulment of the entire proceedings. His ground is this: Summons was
not duly served upon him "as provided under Sec. 7, Rule 7 of the Rules of Court;" 5 accordingly, the
lower court "did not acquire jurisdiction over his person"; and "the trial and decision by default" are
"null and void."6
March 3, 1962. The court denied this motion.
March 24, 1962. Defendant's move to reconsider was rejected by the court.
Hence, this appeal from the orders of March 3 and March 24, 1962, duly certified to this Court
by the Court of Appeals.1wph1.t
September 2, 1965. After the case was submitted for decision, defendant's lawyer informed this
Court of the death of defendant on August 1, 1965.
October 18, 1967. Following extensive efforts to have the deceased defendant substituted by
any of his heirs or the executor or administrator of his estate, which were to no avail, this Court
appointed the Clerk of Court of the Court of First Instance of Manila, representative of the deceased
defendant.
1. A question of transcendental importance which necessarily involves an inquiry into
procedural due process is whether summons in a suit in personam against a resident of the
Philippines temporarily absent therefrom may be validly effected by substituted service under Section
8, Rule 14, (formerly Section 8, Rule 7) of the Rules of Court. A head-on collision of views becomes
inevitable considering the diametrically opposing positions taken by plaintiffs, on the one hand, and
defendant, on the other. For, plaintiffs make the point that even with defendant temporarily abroad,
substituted service is valid under Section 8 by leaving a copy of the summons "at the defendant's
dwelling house or residence with some person of suitable age and discretion then residing therein."
Plaintiffs argue that if the ordinary method prescribed by the rules that is, personal service
under Section 7, Rule 14, is not feasible, then the substituted service in Section 8 aforesaid comes
into play. Section 8 says:
Sec. 8. Substituted service. If the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by leaving copies of the summons at
the defendant's dwelling house or residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular place of business with
some competent person in charge thereof.
Upon the other hand, defendant advances the theory that in a situation like the present, where
defendant was temporarily abroad, the sole and exclusive method of service of summons in a case in
personam is that set forth in Section 18, Rule 14 of the Rules (formerly Section 18, Rule 7), which
reads:
Sec. 18. Residents temporarily out of the Philippines. When an action is commenced against
a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may,
by leave of court, be effected out of the Philippines, as under the preceding section.7
Section 17 referred to in Section 18 (Section 17, Rule 7 in the old Rules) in turn states:
Sec. 17. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual
or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant
from any interest therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal service as under section
7; or by publication in a newspaper of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall specify a reasonable time which shall not be less
than sixty (60) days after notice, within which the defendant must answer.
Historically, in its common-law origin, the jurisdiction of courts to render judgments in
personam was grounded on their de facto power over defendant's person. Jurisdiction was based on
the power to seize and imprison defendant. 8 If a defendant was absent from the territory, the fact that
he was a citizen would not enable the court's officers to seize him and service could not represent this
power.9 Hence, his presence within the territorial jurisdiction was a prerequisite to the rendition of a
judgment personally binding against him. Anglo-American law then emphasized the power concept of
jurisdiction.10
Continental law, however, was somewhat different. It had two fundamental principles of Roman
origin: 1) in suits in personam and those relating to movables, courts of the domicile of the defendant
have general jurisdiction actor rei forum sequitur, and (2) in actions concerning immovables, the
courts of the situs have exclusive jurisdiction.11
In the development of the law, the variance between Anglo-American law and continental law
became "less and less clear-cut" because "American law has had to yield to the increasing necessity
of enlarging more and more the catalogue of forums available to the plaintiff." 12
Thus it is, that American cases forged the doctrine, now long recognized, that domiciliaries of a
state, though temporarily out of its territorial jurisdiction, are always amenable to suits in
personam therein.13 And this precept is the foundation for the American rule that declares substituted
service binding on absent residents. The leading case Milliken vs. Meyer,14 furnishes the rationale:
. . . the authority of a state over one of its citizens is not terminated by the mere fact of his
absence from the state. The state which accords him privileges and affords protection to him and his
property by virtue of his domicile may also exact reciprocal duties. "Enjoyment of the privileges of
residence within the state, and the attendant right to invoke the protection of its laws, are inseparable"
from the various incidences of state citizenship. . . . The responsibilities of that citizenship arise out of
the relationship to the state which domicile creates. That relationship is not dissolved by mere
absence from the state. The attendant duties, like the rights and privileges incident to domicile, are
not dependent on continuous presence in the state. One such incident of domicile is amenability to
suit within the state even during sojourns without the state, where the state has provided and
employed a reasonable method for apprising such an absent party of the proceedings against him.
There should be no doubt, therefore, that in suits in personam, courts have jurisdiction over
residents temporarily out of the country.
This brings us to the question of procedural due process. Substituted service such as one
contemplated in Section 8 upon a temporarily absent resident, it has been held, is wholly adequate to
meet the requirements of due process. 15 The constitutional requirement of due process exacts that
the service be such as may be reasonably expected to give the notice desired. Once the service
provided by the rules reasonably accomplishes that end, the requirement of justice is answered; the
traditional notions of fair play are satisfied; due process is served.
In American jurisprudence, whether a defendant be in another state under the federal system
or is abroad in Europe,16 substituted service is still considered to be valid. 17 The language in Milliken
vs. Meyer, supra, is expressive: "Its adequacy so far as due process is concerned is dependent on
whether or not the form of substituted service provided for such cases and employed
is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard.
If it is, then traditional notions of fair play and substantial justice (McDonald vs. Mabee, supra) implicit
in due process are satisfied."18
When the framers of our Rules adapted Section 8, it is to be implied that they intended to give
the provision the same meaning shaped out by the jurisprudence of the jurisdiction from whence it
was patterned. Section 8 is to be viewed in the same context it is understood in the American legal
system. The word "defendant" in that provision is to be construed as including any resident of this
country. By comparative construction, Section 8 is to be applied to all resident defendants without
distinction as to whether he is physically present in this country or not.
Chief Justice Moran shares this view. Commenting on Section 18, Rule 14, he states: "Since
the defendant is residing in the Philippines, jurisdiction over his person may be acquired by Philippine
courts by substituted service of summons under section 8. But extra-territorial service is allowed also
by leave of court according to the above provision [Section 18]." 19 Justice Martin regards the word
"residence" in Section 8 as "the place where the person named in the summons is living at the time
when the service is made, even though he may be temporarily out of the state at the time."20
This construction is but fair. It is in accord with substantial justice. The burden on a plaintiff is
not to be enlarged with a restrictive construction as desired by defendant here. Under the rules, a
plaintiff, in the initial stage of suit, is merely required to know the defendant's "dwelling house or
residence" or his "office or regular place of business" and no more. He is not asked to investigate
where a resident defendant actually is at the precise moment of filing suit. Once defendant's dwelling
house or residence or office or regular place of business is known, he can expect valid service of
summons to be made on "some person of suitable age and discretion then residing" in defendant's
dwelling house or residence, or on "some competent person in charge" of his office or regular place
of business. By the terms of the law, plaintiff is not even duty-bound to see to it that the person upon
whom service was actually made delivers the summons to defendant or inform him about it. The law
presumes that for him.
It is immaterial then that defendant does not in fact receive actual notice. This will not affect the
validity of the service.21 Accordingly, the defendant may be charged by a judgment in personam as a
result of legal proceedings upon a method of service which is not personal, "which in fact may not
become actual notice to him," and which may be accomplished in his lawful absence from the
country.22 For, the rules do not require that papers be served on defendant personally or a showing
that the papers were delivered to defendant by the person with whom they were left. 23
Reasons for the views just expressed are not wanting. A man temporarily absent from this
country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to
which any inquiry about him may be directed and where he is bound to return. Where one temporarily
absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in
his place and stead; to do all that is necessary to protect his interests; and to communicate with him
from time to time any incident of importance that may affect him or his business or his affairs. It is
usual for such a man to leave at his home or with his business associates information as to where he
may be contacted in the event a question that affects him crops up. If he does not do what is
expected of him, and a case comes up in court against him, he cannot in justice raise his voice and
say that he is not subject to the processes of our courts. He cannot stop a suit from being filed
against him upon a claim that he cannot be summoned at his dwelling house or residence or his
office or regular place of business.
Not that he cannot be reached within a reasonable time to enable him to contest a suit against
him. There are now advanced facilities of communication. Long distance telephone calls and
cablegrams make it easy for one he left behind to communicate with him.
In the light of the foregoing, we find ourselves unwilling to concede that substituted service
provided in Section 8 may be down-graded as an ineffective means to bring temporarily absent
residents within the reach of our courts.
As we go back to the case at hand, there is the temporarily absent defendant who was a parish
priest. Summons upon him was served upon Fr. Bautista who lived in the same convent where
defendant resided. Fr. Bautista, we must assume, is a responsible person. Service upon him is
effective.
2. The view we take of this case sweeps away defendant's argument that Section 18 is the sole
provision that governs summons upon a defendant temporarily absent in an action in personam, as
here. Indeed, defendant's posture strikes at the very language employed by this reglementary
provision cited by him. The word "may" in the statement in Section 8 that "service may, by leave of
court, be effected out of the Philippines," as under Section 17 will not support the deduction,
without more, that Section 18 is the only provision controlling in this case. On the contrary, the
phraseology of the rule is a recognition of the fact that substituted service out of the Philippines
under Section 17 is but one of the modes of effective service to bring a defendant in court. And upon
the basic concepts under which our rules governing processes operate, the normal method of service
of summons on one temporarily absent is by substituted service set forth in Section 8. And this,
because personal service outside the country and service by publication are not ordinary means of
summoning defendants.
In practical terms, we perceive that in suits in personam the more circuitous procedure
delineated in Sections 17 and 18 is resorted to by a plaintiff if defendant's dwelling house or
residence or place of business in this country is not known; or, if known, service upon him cannot be
had thereat upon the terms of Section 8. Here, since personal service is impossible, resort to
substituted service becomes a necessity. A comparison between the service in Section 8 and that in
Sections 17 and 18 is beside the point. They both provide for substituted service. Anyway,
as Goodrich observed: "[I]f a substitute is to be made where an actual personal service is impossible,
'the best is none too good'."24
3. The judgment has long since become final. It enjoys the presumption of regularity. It is,
unless stricken down, entitled to respect. Non quieta movere. Because "[p]ublic policy and sound
practice demand that, at the risk of occasional errors, judgments of courts should become final at
some definite date fixed by law."25
The norm of conduct observed by defendant would not, we believe, tilt the scales of justice in
his favor. We go to the background facts. Logic and common sense tell us that Fr. Bautista who
received the summons and who took interest in the case must have informed defendant one way or
another of the suit, at the latest upon his return in October, 1958. By then there was still time for him
to move to set aside the default order of September 20, 1958. Defendant did not move. It is well to
remember also that judgment by default was not rendered against defendant until June 8, 1959, or
almost nine (9) months after the default order was issued. Again, defendant did nothing. According to
defendant, he learned of that judgment on December 20, 1959. The full impact of the judgment
totalling P34,000.00 must have by then left an indelible mark in his mind. A judgment of a court of
justice is no piddling matter. It should not be trifled with. Especially so when the amount is big, as it is
here. That same day December 20 his attorney took a hand on the matter, wrote back plaintiffs
refusing payment of the claim. The first writ of execution was served on defendant on January 14,
1960. That time he did not pay, because according to the Sheriff's return, defendant then stated that
he was "financially hard up."
Defendant did not bestir himself until February 20, 1962, i.e., not less than to years and two
months after he learned by his own admission of the judgment. And, that was shortly after levy
was made on his house in Caloocan. It is in this actual environment that then CFI Judge Magno
Gatmaitan, in his order of March 24, 1962, correctly observed that "the Court once again believes that
this solution (denial of the motion to reconsider the appealed order) is just because of the apparent
intentional inaction of defendant since 20 December, 1959."
Indeed, it was not right that defendant should have supinely sat on the decision, and
deliberately disregarded the import thereof. Neither was it correct for him to have waited so long, slept
on his rights, and only put plaintiffs to task when his own property was threatened because of the levy
and execution thereon.
The decision below may not thus be annulled. Plaintiffs may not be compelled to file a fresh
suit. Because, prejudice to plaintiffs, which could have been avoided by defendant, will become a
reality. The additional expense, trouble and anxiety need not be essayed. The accident took place on
December 16, 1957. The lower court's decision made mention of two eye witnesses and two doctors
of medicine who testified as to injuries. To bring back those witnesses to court becomes a serious
problem. Plaintiffs will have to search for them and if found, they may not be able to present to the
court a narrative as accurately as they had done before. Time has an unfortunate tendency of
obliterating occurrences from a witness' memory. Recollections are apt to be blurred. Human memory
can even be treacherous. Lapse of time may also carry with it dissipation of other evidence. Surely,
there is great validity to the statement that the march of time is truth in flight. 26 These, in broad
outlines, give life to the salutary policy on which laches is founded.
 WHEREFORE, the orders appealed from dated March 3, 1962 and March 24, 1962 are hereby
affirmed.1wph1.t
Costs against defendant-appellant. So ordered.
Reyes, J.B.L., Dizon, Bengzon, J.P. Zaldivar, Castro and Angeles, JJ., concur.
Makalintal, J., concurs in the result.
Concepcion, C.J., is on leave.
Fernando, J., took no part.
G.R. No. 101256. March 8, 1993.
SPOUSES PEPITO AND LORETO LAUS, petitioners, vs. HON. COURT OF APPEALS, HON.
SALVADOR C. CEGUERA, in his capacity as Presiding Judge of the Regional Trial Court of Quezon
City, Branch 82; NILO SM. CABANG, in his capacity as Deputy Sheriff of Quezon City and
CONSUELO P. TORRES, respondents.
Alberto E. Venturanza for petitioners.
Leonardo Byron R. Perez, Jr. for private respondent.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION; HOW JURISDICTION OVER PERSON
OF DEFENDANT ACQUIRED; EFFECT OF INVALID SERVICE OF SUMMONS; CASE AT BAR.
The focal issue is whether or not the trial court acquired jurisdiction over the persons of the petitioners
by virtue of the substituted service of summons effected by Deputy Sheriff Cruz. Since the petitioners
did not voluntarily submit to the jurisdiction of the trial court, proper service of summons became
imperative. If the service effected in the case at bar was, as claimed by the petitioners, invalid, the
trial court acquired no jurisdiction over their persons. In such an instance, the order of default,
judgment by default and writ of execution issued by the trial court would be null and void. . . . Since
the substituted service of summons in this case was not validly effected, the trial court did not acquire
jurisdiction over the persons of the petitioners. The order of default, the judgment by default, the writ
of execution issued by it, as well as the auction sale of the petitioners' properties levied on execution
are, therefore, all null and void.
2. ID.; ID.; SUMMONS; PERSONAL SERVICE; GENERAL RULE; SUBSTITUTED SERVICE
NATURE THEREOF; PHRASE "WITHIN A REASONABLE TIME" CONSTRUED. The general rule
in this jurisdiction is that summons must be personally served; pursuant to Section 7, Rule 14 of the
Revised Rules of Court, such personal service is to be accomplished by "handing a copy thereof to
the defendant in person, or, if he refuses to receive it, by tendering it to him." However, if this mode of
service cannot be effected within a reasonable time, substituted service may be resorted to under
Section 8 of the same Rule. Section 8 provides: "SEC. 8. Substituted Service. If the defendant
cannot be served within a reasonable time as provided in the preceding section, service may be
effected (a) by leaving copies of the summons at the defendant's dwelling house or residence with
some person of suitable age and discretion then residing therein, or (b) by leaving the copies at
defendant's office or regular place of business with some competent person in charge thereof." This
provision is a reproduction of Section 8, Rule 7 of the 1940 Rules of Court except that inter alia,
"promptly" in the latter was changed to "within a reasonable time" in the former. "Within a reasonable
time" contemplates a period of time longer than that demarcated by the word "prompt," and
presupposes that a prior attempt at personal service, within a justifiable time frame as would be
necessary to bring the defendant within the jurisdiction of the court, had failed. Since substituted
service is in derogation of the common law and is extraordinary in character, it must be used only as
prescribed and in the circumstances authorized by statute. Statutes prescribing modes other than
personal service of summons must be strictly complied with to give the court jurisdiction, and such
compliance must appear affirmatively in the return.
3. ID.; ID.; ID.; HOW IMPOSSIBILITY OF PROMPT PERSONAL SERVICE SHOWN; CASE AT BAR.
In Keister vs. Navarro, this Court described how the impossibility of personal service should be
shown: "Impossibility of prompt service should be shown by stating the efforts made to find the
defendant personally and the fact that such efforts failed. This statement should be made in the proof
of service (I Moran, Comments on the Rules of Court, 1970 Ed., p. 444). This is necessary because
substituted service is in derogation of the usual method of service. It has been held that this method
of service is `in derogation of the common law; it is a method extraordinary in character, and hence
may be used only as prescribed and in the circumstances authorized by statute.' . . . (72 C.J.S.
1053)." A perusal of the sheriff's return in the case at bar readily reveals that it does not (a) indicate
the impossibility of service of summons within a reasonable time, (b) specify the efforts exerted to
locate the petitioners and (c) state that it was served on a person of sufficient age and discretion
residing therein. The fact of the matter is that as disclosed in his testimony taken in connection with
the motion for reconsideration, and the affidavit he prepared in conjunction with such hearing. Deputy
Sheriff Cruz resorted to a substituted service on his first and only attempt to effect a personal
service. Upon being informed that the petitioners were not around at that time, he immediately
resorted to a substituted service through Josephine Areola, a person whose age he did not even
know or attempt to discover. He did not even inquire about the whereabouts of the petitioners, the
time they were expected to return home, the hours of the day they could be contacted at their house
or the location of their offices, if any, in order that he could faithfully comply with the requirement of
personal service.
4. ID.; ID.; ID.; SERVICE OF SUMMONS MAY BE MADE AT NIGHT, DURING THE DAY, ON A
SUNDAY OR A HOLIDAY; REASON THEREFOR; CASE AT BAR. It is all too obvious that no
earnest efforts were exerted by Deputy Sheriff Cruz to effect the personal service of summons. His
testimony thus attests to an undue, if not indecent, haste to serve the summons at the first attempt
without making sure that personal service was, by then and even thereafter, an impossibility because
either the petitioners had left for a foreign country or an unknown destination with not definite date of
returning within a reasonable period or had gone into hiding to avoid service of any process from the
courts. If he had only made the inquiries suggested above, he could have returned in the evening of
10 October 1989 or on any of the succeeding days including the following Saturday and Sunday.
Service of summons may be made at night as well as during the day, or even on a Sunday or holiday
because of its ministerial character.
5. ID.; ID.; MOTION TO DISMISS ON GROUND OF LACK OF JURISDICTION OVER
DEFENDANT'S PERSON; PERIOD FOR FILING DOES NOT COMMENCE TO RUN UNTIL
DEFENDANT VOLUNTARILY SUBMITS TO COURT'S JURISDICTION; REASON THEREFOR;
CASE AT BAR. Some further comments, en passant, on the ratiocination of the respondent Court
are in order. It is not accurate for the latter to have said that the petitioners' motion to dismiss was not
filed seasonably because it was filed beyond the reglementary period provided in the Revised Rules
of Court. Such a conclusion would doubtless be correct if there was a valid service of summons. If,
however, a defendant has not been properly summoned, the period to file a motion to dismiss for lack
of jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction
of the court, since the court has no jurisdiction to adjudicate the controversy as to him until such time.
In this case, petitioners did not voluntarily submit to the jurisdiction of the trial court. Consequently,
the period to file a responsive pleading did not even commence to run.
6. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; WHEN INTERLOCUTORY ORDER MAY BE THE
SUBJECT THEREOF; CASE AT BAR. Nor are We persuaded by the respondent Court's
declaration that even if the motion to dismiss had been filed on time, the trial court's order denying the
same, being interlocutory, still cannot be the subject of a petition for certiorari. To be sure, this rule
admits of an exception, as when the trial court clearly acted outside of its jurisdiction or with grave
abuse of discretion in denying the motion to dismiss. This is exactly what happened in the case while
it was pending before the trial court; the denial of the motion to dismiss was based solely on the
ground that a judgment by default had already been entered. Certainly, this does not constitute a
valid ground for the denial because the motion raises a fundamental and prejudicial issue affecting
the validity of the decision by default.
7. ID.; EVIDENCE DISPUTABLE PRESUMPTIONS; PRESUMPTION OF REGULARITY IN
PERFORMANCE OF OFFICIAL FUNCTIONS; DOES NOT APPLY WHERE SHERIFF'S RETURN IS
PATENTLY DEFECTIVE. Finally, respondent Court's reliance on the presumption of regularity in
the performance of official functions is misplaced. We have held that such a presumption does not
apply where it is patent that the sheriff's return is defective.
8. ID.; VOID JUDGMENT CAN NEVER BECOME FINAL AND EXECUTORY; ACTION TO DECLARE
NULLITY OF VOID JUDGMENT IMPRESCRIPTIBLE; CASE AT BAR. Equally unmeritorious is the
respondent Court's statement that the failure of the petitioners to appeal from the judgment by default
rendered such judgment final and unassailable. In the first place, it is axiomatic that a void judgment
can never become final and executory and may even be assailed or impugned at any time. An action
to declare the nullity of a void judgment does not prescribe. Secondly, the motion to dismiss in this
case was filed before the petitioners received a copy of the decision by default. Since the said motion
is based on the lack of jurisdiction over the persons of the petitioners which, if true in fact, We have
found it to be so would result in the nullification not only of the default order but of the decision as
well, then for all legal intents and purposes, the latter was covered by the motion. This was precisely
the orientation of the trial court when it allowed the parties to submit evidence to support the motion to
reconsider the Order of 5 March 1990 denying the motion to dismiss. It would certainly not have gone
that far if it thought otherwise for by then, the decision had already become final.
DECISION
DAVIDE, JR., J p:
Petitioners seek the review and reversal of the 30 May 1991 Decision 1 of respondent Court of
Appeals in CA-G.R. SP No. 22232 2 and the 30 July 1991 Resolution denying their motion to
reconsider the said decision. The challenged decision dismissed, for lack of merit, their petition for
certiorari, prohibition and injunction to annul the Orders dated 5 March 1990 and 9 July 1990 of
Branch 82 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-89-3327 which,
respectively, declared them in default and denied their motion to reconsider such declaration.
The antecedents of this case are not controverted.
On 24 August 1989, private respondent Consuelo P. Torres filed against "Loredo (sic) Alfaro-Laus
and John Doe" a complaint, docketed as Civil Case No. Q-89-3327, for the collection of a sum of
money. The defendants in the said case are the petitioners in the instant petition. The complaint
alleges that petitioner Loreto Alfaro-Laus executed a promissory note in favor of the private
respondent under which the former undertook to pay the latter the amount of Sixty-Six Thousand
Pesos (P66,000.00) after three (3) months from the date thereof. Upon maturity of the said
promissory note, however, only Eleven Thousand Pesos (P11,000.00) was paid; despite the receipt
of a demand letter from the private respondent, petitioners made no further payments. Thus, the
former filed the aforementioned complaint praying for the payment of the unpaid balance of
P55,000.00 "plus interest at the rate of ten per cent (10%), compounded monthly beginning February
21, 1989, and twenty-five per cent (25%) of the entire amount due for and as attorney's fees, such
being in accordance with the terms and conditions set forth in the promissory note." 3
On 10 October 1989, Deputy Sheriff Romero S. Cruz proceeded to the petitioners' address at 122
Molave Park Subdivision, Paraaque, Metro Manila to serve the summons and a copy of the
complaint. Failing to serve the summons personally upon the petitioners after waiting for ten (10)
minutes, he resorted to a substituted service through one Josephine Areola, who purportedly
represented herself to be the maid of the said petitioners. 4 On the same date, Deputy Sheriff Cruz
executed and filed a return 5 which reads:
"Respectfully returned to the REGIONAL TRIAL COURT Branch 82, QUEZON CITY, the attached
original copy of the summons issued in connection with Civil Case No. 89-3327 entitled CONSUELO
P. TORRES versus LOREDO (sic) LAUS & JOHN DOE with the information that duplicate copy of the
same together with the complaint and its annexes was duly served upon defendant Loredo (sic) Laus
of 122 Molave Park Subd. Paraaque M. M. thru JOSEPHINE AREOLA, maid of Loredo Daus (sic) of
same address, received as evidenced by her signature appearing thereon."
The petitioners did not file any answer. Consequently, upon motion of the private respondent, the trial
court 6 issued on 29 December 1989 an order declaring the former in default and setting the ex parte
presentation of the private respondent's evidence for 16 January 1990. 7 The petitioners claim that
they received this 29 December 1989 Order only on 22 January 1990.
On 24 January 1990, the trial court rendered a judgment by default against the petitioners; it ordered
the latter "[T]o pay the plaintiff (private respondent) the amount of FIFTY-FIVE Thousand Pesos
(P55,000.00) at the rate of ten per cent (10%), compounded monthly beginning February 21, 1989 up
to the present; and . . . [T]o pay attorney's fees equivalent to twenty-five percent (25%) of the entire
amount due" to the private respondent. 8
On 2 February 1990, before receiving a copy of the 22 January 1990 decision, petitioners, by way of
a special appearance, filed a motion to dismiss the case for lack of jurisdiction over their persons.
They allege that the service of summons was ineffective because it was not indicated in the return
that the sheriff had first exerted efforts to serve the same personally before resorting to substituted
service. 9
In its Order of 5 March 1990, the trial court denied the motion to dismiss for lack of merit on the
ground that it had already rendered a judgment by default on 24 January 1990. 10 Petitioners
received a copy of this order on 24 March 1990. In the meantime, the trial court issued a writ of
execution.
On 30 March 1990, public respondent Deputy Sheriff Nilo Cabang, pursuant to a writ of execution
issued by the trial court, levied upon petitioners' properties consisting of a 1983 Mitsubishi Galant
Sedan and a men's ring.
On 3 April 1990, petitioners filed a motion to reconsider the Order of 5 March 1990; 11 they reiterated
therein the contention that the trial court did not acquire jurisdiction over their persons because of the
defective service of summons, and further aver that:
"Josephine Areola, the person who supposedly received the summons is not even known to the
defendants. It turned out from their investigation that said Josephine Areola was just a guest of one of
their maid (sic) who stayed for only about a week. Furthermore Josephine Areola was just a child of
about ten to eleven years old and would not be expected to know what to do with the documents
handed to her. With all due respect it would not be fair for the defendant if the summons would be
served upon the defendants through a person who is not of sufficient age and discretion at the time
the summons was served, and a transcient (sic) at that." 12
A hearing on the motion for reconsideration was held and the parties presented evidence on the issue
of service of summons. Petitioner Loreto Alfaro-Laus testified that Josephine Areola, who was 11 to
12 years old at that time, was just a guest of her maid and thus stayed in the house for a week.
Private respondent, on the other hand, presented evidence to show that Josephine had been staying
in the petitioners' house since July 1990 for she was the person who received the demand letter sent
to the petitioners on 3 July 1989. 13 Deputy Sheriff Cruz also took the witness stand, identified the
affidavit he executed on 27 April 1990 14 and further asserted that he found no one in the house of
the petitioners when he arrived on 10 October 1989; he claimed that he waited for ten (10) minutes.
Thereupon, two (2) women arrived; the said women told him, upon his inquiry, that the petitioners
were not around. He then served the summons through one of them, Josephine Areola. 15
In its Order of 9 July 1990, 16 the trial court denied the petitioners' motion for reconsideration and
held that there was a proper service of summons because contrary to Loreto Alfaro-Laus' statement
that Areola was a guest of their maid for a week, it was proven that Areola was in fact the very person
who, on 3 July 1989, received the demand letter sent by the private respondent.
On 17 July 1990, petitioners filed with the Court of Appeals a petition for certiorari, prohibition and
injunction with application for a restraining order 17 to set aside the trial court's Orders of 5 March
1990 and 9 July 1990, and to dismiss Civil Case No. Q-89-3327. The petition was docketed as CA-
G.R. SP No. 22232. Petitioners insisted therein that the trial court committed grave abuse of
discretion and a grave error in denying their motion to dismiss and the motion to reconsider said
denial despite the lack of jurisdiction over their persons. They likewise challenged the denial of such
motion to dismiss which was based solely on the ground that a judgment by default had already been
rendered. 18
On 30 May 1991, the respondent Court of Appeals promulgated its decision 19 denying the petition
for lack of merit. It made the following disqualifications:
" . . . it was the defendants-petitioners who erred in filing a motion to dismiss at that late stage of the
proceedings. A motion to dismiss on the ground that the Court has no jurisdiction over the person of
the defendants is proper only when made within the reglementary period for filing a responsive
pleading and before such responsive pleading is filed (Rule 16, Sec. 1[a]). In this case, the
defendants-petitioners' motion to dismiss was filed five (5) months after the complaint was filed and
only after a default judgment had already been rendered by the respondent Court. Thus, it was rather
too late in the day for the defendants-petitioners' motion to dismiss to be considered by the
respondent Court. In the proper exercise of its sound judicial discretion, the respondent Court did not
err in denying the motion to dismiss on the ground that a judgment by default had already been
rendered.
Besides, even if the motion to dismiss was filed on time, and yet, was still denied by the respondent
Court, the order of the court denying the motion to dismiss is interlocutory and cannot be the subject
of a petition for certiorari, such as this instant petition (National Investment and Development Corp.
vs. Aquino, 163 SCRA 153). The denial of a motion to dismiss cannot be questioned in a petition for
certiorari, which is an extra-ordinary writ that is not allowed as a substitute for ordinary appeal (Tan
vs. Intermediate Appellate Court, 164 SCRA 130).
Be that as it may, the defendants-petitioners had other remedies available to them, but which they
failed to avail of. In a long line of cases decided by the Supreme Court, it has been repeatedly
provided that the remedies of a defaulted defendant are:
(a) The defendant in default may, at any time after discovery thereof and before judgment, file a
motion, under oath, to set aside the order of default on the ground that his failure to answer was due
to fraud, accident, mistake, excusable negligence, and that he has a meritorious defense;
(b) If the judgment has already been rendered when the defendant discovered the default, but before
the same has become final and executory, he may file a Motion for New Trial under Section 1[a] of
Rule 37;
(c) If the defendant discovered the default after the judgment has become final and executory, he
may file a petition for relief under Sec. 2 of Rule 38; and
(d) He may also appeal from the judgment rendered against him as contrary to the evidence or to law,
even if no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41). (Lina
vs. Court of Appeals, 135 SCRA 637; Tiburcio vs. Castro, 161 SCRA 583).
As it is, the defendants-petitioners failed, after they received notice of the order declaring them in
default and before the default judgment was rendered, to file a motion, under oath, to set aside the
order of default on the ground that they failed to file a timely answer due to fraud, accident, mistake,
or excusable negligence, and showing (sic) that they had a meritorious defense.
The other applicable remedy which they failed to employ is the remedy of appeal from the judgment
rendered against them as contrary to the evidence or the law, even in the absence of a
motion/petition to set aside the order of default. This instant petition for certiorari cannot be a
substitute for the remedy of appeal, which the defendants-petitioners did not pursue, as they must
first exhaust the remedies available to them (Lina vs. Court of Appeals, supra.). That the judgment by
default had already become final and is about to be executed is the result of the defendants-
petitioners' failure to file a timely appeal. As such, the default judgment may no longer be challenged
(Tiburcio vs. Castro, supra.)
Lastly, We find that the respondent Court was liberal enough in hearing the defendants-petitioners'
motion for reconsideration of the denial of their motion to dismiss. As the pivotal issue therein, the
defendant-petitioners were given their day in court to prove that the service of summons to them was
both improper and invalid. After weighing the evidence and testimonies of the parties and other
persons involved, the respondent Court ruled that there was valid service of summons. We find no
compelling reason to rule otherwise.
There is such a presumption of regularity in the performance of official functions by the sheriff, and it
was up to the defendants-petitioners to convince the respondent Court that there was, indeed, invalid
service of summons. This they failed to do. They could not substantiate their claim that Josephine
Areola was a child of 10 to 11 years who would not know what to do with the court documents
received by her. The defendants-petitioners' contention that Josephine Areola stayed with them for
only a few days backfired when the private respondent presented documentary evidence to show that
Josephine Areola was already residing in the defendants-petitioners' house at least three (3) months
before the summons was served. No other proof was presented by the defendants-petitioners to
bolster their allegations apart from their self-serving, and sometimes conflicting, testimonies. Thus,
We find no error or grave abuse of discretion on the part of the respondent Court in denying the
defendants-petitioners' motion for reconsideration." 20
Meanwhile, on 13 June 1991, respondent sheriff Nilo Cabang sold at a public auction the levied
men's ring - on oval diamond set in yellow gold to the private respondent for P140,000.00, and the
Galant car to Atty. Leonardo Perez, Jr., counsel for the latter, for P180,000.00. Both were the highest
bidders. 21
Their motion for the reconsideration of the aforesaid decision having been denied in the respondent
Court's Resolution of 30 July 1991, 22 petitioners availed of this recourse under Rule 45 of the
Revised Rules of Court and raise the following issues:
"1. WHETHER OR NOT THE COURT A QUO ACQUIRED JURISDICTION OVER THE REASONS
OF THE PETITIONERS BY VIRTUE OF THE SUBSTITUTED SERVICE OF SUMMONS EFFECTED
BY DEPUTY SHERIFF ROMEO CRUZ;
2. WHETHER OR NOT THE REMEDY OF CERTIORARI CAN BE AVAILED OF BY A PARTY
IMPROVIDENTLY DECLARED IN DEFAULT TO CHALLENGE THE ORDER OF DEFAULT AND
THE SUBSEQUENT JUDGMENT BY DEFAULT." 23
On 10 February 1992, after the filing of the private respondent's comment and the petitioners' reply
thereto, We resolved to give due course to the petition and required the parties to file their respective
memoranda which they subsequently complied with.
We find merit in this petition.
The focal issue is whether or not the trial court acquired jurisdiction over the persons of the petitioners
by virtue of the substituted service of summons effected by Deputy Sheriff Cruz. Since the petitioners
did not voluntarily submit to the jurisdiction of the trial court, proper service of summons became
imperative. If the service effected in the case at bar was, as claimed by the petitioners, invalid, the
trial court acquired no jurisdiction over their persons. 24 In such an instance, the order of default,
judgment by default and writ of execution issued by the trial court would be null and void. 25
The general rule in this jurisdiction is that summons must be personally served; pursuant to Section 7,
Rule 14 of the Revised Rules of Court, such personal service is to be accomplished by "handing a
copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him."
However, if this mode of service cannot be effected within a reasonable time, substituted service may
be resorted to under Section 8 of the same Rule. Section 8 provides:
"SECTION 8. Substituted Service. If the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by leaving copies of the summons at
the defendant's dwelling house or residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular place of business with
some competent person in charge thereof."
This provision is a reproduction of Section 8, Rule 7 of the 1940 Rules of Court except that inter alia,
"promptly" in the latter was changed to "within a reasonable time" in the former. "Within a reasonable
time" contemplates a period of time longer than that demarcated by the word "prompt," and
presupposes that a prior attempt at personal service, within a justifiable time frame as would be
necessary to bring the defendant within the jurisdiction of the court, had failed. 26 Since substituted
service is in derogation of the common law and is extraordinary in character, it must be used only as
prescribed and in the circumstances authorized by statute. 27 Statutes prescribing modes other than
personal service of summons must be strictly complied with to give the court jurisdiction, and such
compliance must appear affirmatively in the return. 28
In Keister vs. Navarro, 29 this Court described how the impossibility of personal service should be
shown:
"Impossibility of prompt service should be shown by stating the efforts made to find the defendant
personally and the fact that such efforts failed. This statement should be made in the proof of service
(I Moran, Comments on the Rules of Court, 1970 Ed., p. 444). This is necessary because substituted
service is in derogation of the usual method of service. It has been held that this method of service is
'in derogation of the common law; it is a method extraordinary in character, and hence may be used
only as prescribed and in the circumstances authorized by statute.' . . . (72 C.J.S. 1053)."
Emphasizing the need for strict compliance with the requirements of substituted service, this Court
issued Administrative Circular No. 59, the pertinent portions of which read as follows:
"SUBJECT: Service of Summons.
Delays in court proceedings have been caused by faulty and erroneous implementation of Section 8,
Rule 14, Rules of Court on Substituted Service of Summons.
The Trial Judges of all lower courts, as well as the Clerks of Court in their capacity as Ex-Officio
Sheriffs together with the Deputy Sheriffs are reminded of the provision of Section 8, Rule 14, Rules
of Court on substituted service as follows:
xxx xxx xxx
The manner of effecting substituted service as prescribed in Venturanza v. Court of Appeals, 156
SCRA 305, must be strictly complied with, thus:
'The substituted service should be availed only when the defendant cannot be served promptly in
person. Impossibility of prompt service should be shown by stating the efforts made to find the
defendant personally and the failure of such efforts. The statement should be made in the proof of
service. This is necessary because substituted service is in derogation of the usual method of
service.
Substituted service is a method extraordinary in character, and hence may be used only as
prescribed in the circumstances authorized by statute. Thus, the statutory requirements of substituted
service must be followed strictly, faithfully, and any substituted service other than that authorized by
the statute is considered ineffective.'
For immediate compliance."
A perusal of the sheriff's return in the case at bar readily reveals that it does not (a) indicate the
impossibility of service of summons within a reasonable time, (b) specify the efforts exerted to locate
the petitioners and (c) state that it was served on a person of sufficient age and discretion residing
therein. The fact of the matter is that as disclosed in his testimony taken in connection with the motion
for reconsideration, and the affidavit he prepared in conjunction with such hearing. Deputy Sheriff
Cruz resorted to a substituted service on his first and only attempt to effect a personal service.
Upon being informed that the petitioners were not around at that time, he immediately resorted to a
substituted service through Josephine Areola, a person whose age he did not even know or attempt
to discover. He did not even inquire about the whereabouts of the petitioners, the time they were
expected to return home, the hours of the day they could be contacted at their house or the location
of their offices, if any, in order that he could faithfully comply with the requirement of personal service.
Thus, he declared and admitted:
"Q In this case, you went to the residence of the defendant once as you stated on paragraph 3 30 on
October 10, 1989?
A Yes, sir.
Q And you did not wait the (sic) defendant to come because according to you in paragraph 4, you
were informed that the defendant was not around, is that correct?
A According to the maid.
Q So upon being informed that the defendant was not around you served the summons, according to
paragraph 4 to one Josephine Ariola, is that correct?
A Yes, sir.
Q In other words, you relied on the information given to you by somebody that the defendant was not
around?
A: I waited there for around ten (10) minutes and then two (2) women arrived in the tricycle and I
waited them (sic) to get inside and I asked them if Mr. and Mrs. Laus will be coming.
Q And they answered they were not around at that time?
A Yes, sir.
Q So, you immediately served the summons upon the persons arriving (sic)?
A Yes, sir.
Q And who were these persons who arrived?
A Josephine Ariola.
Q And who is her companion?
A I did not ask anymore?
xxx xxx xxx
Q Who is older, is this Josephine Ariola or her companion?
A Josephine Ariola, she was the one who signed the summons.
Q Did you ask her age?
A I did not ask anymore because she look already (sic) of sufficient age.
Q That's your conclusion?
A Yes because she was the maid there and she was the older one." 31
As it turns out, the unrebutted evidence for the petitioners establishes that Areola (or Ariola) was only
11 to 12 years old at the time substituted service was attempted. 32
It is all too obvious that no earnest efforts were exerted by Deputy Sheriff Cruz to effect the personal
service of summons. His testimony thus attests to an undue, if not indecent, haste to serve the
summons at the first attempt without making sure that personal service was, by then and even
thereafter, an impossibility because either the petitioners had left for a foreign country or an unknown
destination with not definite date of returning within a reasonable period or had gone into hiding to
avoid service of any process from the courts. If he had only made the inquiries suggested above, he
could have returned in the evening of 10 October 1989 or on any of the succeeding days including
the following Saturday and Sunday. Service of summons may be made at night as well as during the
day, or even on a Sunday or holiday because of its ministerial character. 33
Since the substituted service of summons in this case was not validly effected, the trial court did not
acquire jurisdiction over the persons of the petitioners. The order of default, the judgment by default,
the writ of execution issued by it, as well as the auction sale of the petitioners' properties levied on
execution are, therefore, all null and void.
There is more in this case which further unmasks the nullity of the decision of the trial court. Both
parties agree that the petitioners were the defendants in Civil Case No. Q-89-3327. However,
petitioner Loreto Alfaro-Laus is erroneously mentioned in the complaint as Loredo. On the other hand,
petitioner Pepito Laus, the husband of Loreto, is merely designated as JOHN DOE. The latter was
impleaded as a co-defendant presumably on the theory that the liability sought to be enforced is a
conjugal partnership liability. In short, Loreto's husband was sued as an indispensable party; it is clear
that the trial court treated him as such when in its decision, ordered the defendants, not just Loreto, to
pay the adjudged amounts.
The sheriff's return of service indisputably discloses that no summons was even attempted to be
served on petitioner Pepito Laus. Sheriff Cruz unequivocally states therein that the "duplicate copy of
the same together with the complaint and its annexes was duly served upon defendant Loredo (sic)
Laus of 122 Molave Park Subd. Paraaque M. M. thru JOSEPHINE AREOLA, maid of Loredo Daus
(sic) of same address, . . . ." 34
Neither Deputy Sheriff Cruz nor the private respondent had volunteered additional information to the
effect that at some other time, summons was in fact served on Pepito Laus. Accordingly, the trial
court never acquired jurisdiction over his person. And yet, while it concedes in its 29 December 1989
Order that the substituted service of summons was valid only for Loreto, it declared the defendants
and not only her in default. The court could have easily avoided this misdoing if it only examined
the records before issuing the order. On this score alone, the judgment by default is fatally flawed.
There is still another fact which betrays the trial court's unusual haste in rendering the judgment by
default. In the dispositive portion of the decision, the defendants were ordered, inter alia:
"1. To pay the plaintiff the amount of FIFTY-FIVE Thousand Pesos (P55,000.00) at the rate of ten per
cent (10%), compounded monthly beginning February 21, 1989 up to the present;" 35
While this rate of ten per cent (10%) could only refer to the imposable interest, the court failed to state
whether its application shall be on a monthly or yearly basis. The body of the decision, however,
speaks of ten per cent (10%) interest PER MONTH; 36 this seems to have been the basis relied on
by respondent sheriff Cabang in computing for the petitioners' alleged liability for purposes of
execution. 37 This award of interest in effect amounting to one hundred twenty per cent (120%)
per annum and the additional twenty-five per cent (25%) of the total amount due ordered paid as
attorney's fees, are unreasonable and unconscionable.
Since the trial court's default order and judgment by default are null and void, the respondent Court
gravely erred in affirming them.
Some further comments, en passant, on the ratiocination of the respondent Court are in order. It is
not accurate for the latter to have said that the petitioners' motion to dismiss was not filed seasonably
because it was filed beyond the reglementary period provided in the Revised Rules of Court. Such a
conclusion would doubtless be correct if there was a valid service of summons. If, however, a
defendant has not been properly summoned, the period to file a motion to dismiss for lack of
jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction of
the court, since the court has no jurisdiction to adjudicate the controversy as to him until such time. 38
In this case, petitioners did not voluntarily submit to the jurisdiction of the trial court. Consequently,
the period to file a responsive pleading did not even commence to run.
Nor are We persuaded by the respondent Court's declaration that even if the motion to dismiss had
been filed on time, the trial court's order denying the same, being interlocutory, still cannot be the
subject of a petition for certiorari. To be sure, this rule admits of an exception, as when the trial court
clearly acted outside of its jurisdiction or with grave abuse of discretion in denying the motion to
dismiss. 39 This is exactly what happened in the case while it was pending before the trial court; the
denial of the motion to dismiss was based solely on the ground that a judgment by default had
already been entered. Certainly, this does not constitute a valid ground for the denial because the
motion raises a fundamental and prejudicial issue affecting the validity of the decision by default.
Equally unmeritorious is the respondent Court's statement that the failure of the petitioners to appeal
from the judgment by default rendered such judgment final and unassailable. In the first place, it is
axiomatic that a void judgment can never become final and executory and may even be assailed or
impugned at any time. 40 An action to declare the nullity of a void judgment does not prescribe. 41
Secondly, the motion to dismiss in this case was filed before the petitioners received a copy of the
decision by default. Since the said motion is based on the lack of jurisdiction over the persons of the
petitioners which, if true in fact, We have found it to be so would result in the nullification not
only of the default order but of the decision as well, then for all legal intents and purposes, the latter
was covered by the motion. This was precisely the orientation of the trial court when it allowed the
parties to submit evidence to support the motion to reconsider the Order of 5 March 1990 denying the
motion to dismiss. It would certainly not have gone that far if it thought otherwise for by then, the
decision had already become final.
Its suggestion that the petitioners should have filed a motion to set aside the order of default on the
ground that they had failed to file the answer on grounds of fraud, accident, mistake or excusable
negligence or a motion for new trial or a petition for relief from judgment, is untenable for it begs the
question. Besides, as shown above, petitioners' failure to file the answer was not based on any of
these grounds, but stood on the void service of summons.
Finally, respondent Court's reliance on the presumption of regularity in the performance of official
functions is misplaced. We have held that such a presumption does not apply where it is patent that
the sheriff's return is defective. 42
WHEREFORE, the Decision of the respondent Court of Appeals of 30 May 1991 and the Resolution
dated 30 July 1991 in CA-G.R. SP No. 22232 are hereby REVERSED and SET ASIDE. The Order of
Branch 82 of the Regional Trial Court of Quezon City of 29 December 1989 (Civil Case No. Q-89-
3327) declaring petitioners in default, its Decision of 24 January 1990, Orders of 5 March 1990 and 9
July 1990 and the writ of execution issued therein, as well as all proceedings had pursuant to the writ
of execution, are declared NULL and VOID. The case is hereby remanded to the court of origin for
further proceedings which shall include the valid service of summons.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ ., concur.
Gutierrez, Jr., J ., on terminal leave.
G.R. No. L-30353 September 30, 1982
PATRICIO BELLO, plaintiff-appellee,
vs.
EUGENIA UBO and PORFERIO REGIS, defendants-appellants.

ABAD SANTOS, J.:

Defendants-appellants Eugenia Ubo and Porferio Regis pray in this appeal that the following be
declared null and void for having been issued without jurisdiction by the Court of First Instance of
Leyte, Branch II, in Civil Case No. 4031 which is an action for recovery of real property with damages,
namely: (1) the order dated July 22, 1967, declaring defendants-appellants in default; (2) the
judgment by default dated July 31, 1967; (3) the order dated September 16, 1967, denying
defendants- appellants' motion for relief from judgment; and (4) the order dated January 8, 1968,
denying their motion for reconsideration. Defendants-appellants further pray that the case be
remanded to the court of origin for further proceedings.
The records of the case bear out the following antecedents:
On April 29, 1967, the plaintiff, thru counsel, filed with the Court of First instance of leyte a complaint
for recovery of real property with damages against the defendants praying, among other things, that
he be declared the true and lawful owner of the parcel of land which had been forcibly occupied by
the defendants since 1962 under claim of ownership, and that the defendants be ordered to pay him
the sums representing the value of the coconuts harvested from the land since 1962; moral damages
in an amount the court may find reasonable; P260.00 for expenses of relocation survey; P300.00
attorney's fees and the incidental expenses and costs of the proceeding.
Summons were issued on May 4, 1967, requiring the defendants to file their answer to the complaint
within 15 days from service thereof. A certain Patrolman Castulo Yobia of the Police Department of
Jaro, Leyte served the summons on the defendants on May 15, 1967.
As no answer was filed by the defendants, plaintiff's counsel, on July 17, 1967, filed a motion to
declare defendants in default. Acting upon said motion, the Court of First Instance of Leyte issued an
order dated July 22, 1967, declaring the defendants in default and directing the plaintiff to present ex-
parte his evidence on the 24th day of the same month. Thereafter a judgment by default dated July
31, 1967, was rendered by said court, the dispositive portion of which reads as follows:
WHEREFORE, and in view of all the foregoing, the Court renders decision declaring the plaintiff the
owner of the western portion of the land covered by Original Certificate of Title No. P-225 containing
an area of 16,41 0 square meters as shown in Exhibit "C- 1 "; ordering the defendants to vacate the
said portion occupied by them; to pay the sum of P900.00 a year from July, 1962, up to the time the
said defendant will deliver the land in question to the plaintiff; to pay the amount of P300.00 as
attorney's fees; and to pay the costs.
The order of default and the judgment by default were received by the defendants on August 2, 1967,
and August 11, 1967, respectively.
Upon receipt of the order of default, the defendants contracted the services of Atty. Generoso
Casimpan who immediately inquired from Pat. Castulo Yobia about the service of the summons. Pat.
Yobia then showed him a copy of the complaint which he failed to deliver to the defendants.
On August 17, 1967, defendants' counsel filed a motion for relief from judgment charging irregularity
in the service of the summons and praying that the order of default dated July 22, 1967, and the
judgment by default dated July 31, 1967, be set aside and that defendants' answer, which was
attached to said motion, be admitted. The defendants alleged in said motion that the subject land was
inherited by them so that they have a good and valid right thereto. They further alleged that they had
been paying taxes on the land that the complaint was filed merely to compel them to settle a criminal
case for frustrated homicide which they had filed against the plaintiff's son.
On September 16, 1967, the Court of First Instance of Leyte issued an order denying the motion for
relief from judgment on the ground that the same was not accompanied by an affidavit of merit. A
copy of said order was received by the defendants on September 28, 1967.
On October 4, 1967, defendants' counsel filed a motion for reconsideration contending that since the
motion for relief from judgment was predicated on lack of jurisdiction over the person of the
defendants, the same need not be accompanied by an affidavit of merit. However, before the court
could act on the motion for reconsideration, the defendants' counsel amended the same and attached
thereto, their affidavit of merit which reads as follows:
WE, EUGENIA UBO and PORFERIO REGIS, the mother and son, respectively, the former-widow,
and the latter married, both of age, Filipinos and residents of Barrio Tuba, Jaro, Leyte, Philippines,
after being duly sworn to in accordance with law, hereby depose and say:
1. That 1, Eugenia Ubo, am the defendant in Civil Case No. 4031, entitled Patricio Bello vs. Eugenia
Ubo, et al.,; that although it appears that in the summons I received a copy of the complaint and
served with the summons, the truth of the matter is that I did not receive a copy of the complaint, nor
my son, Porferio Regis. Said complaint was served instead to the plaintiff, Patricio Bello, as
appearing in the said summons, and that the signature appearing in the said summons is actually not
mine, not knowing how to read or write myself;
2. That 1, Porferio Regis, am a co-defendant in the aforementioned civil case; that the signature in
the summons now attached to the record of the case is mine, but although it appears that I was
served with summons together with the complaint, the truth about it is that I did not receive the
complaint supposed to be delivered to me or my mother; instead, the summons was withdrawn after I
had signed it;
3. That sometime on August 2, 1967, through the aid of our lawyer, Atty. Generoso Casimpan, it was
then that we received a copy of the complaint from the serving policeman, Castulo Yobia, in the
presence of Attys. Marcelo Caoelin and Alfredo Lastrilla;
4. That because of our own ignorance and the mistake of the serving policeman, it was perhaps the
reason why the Hon. Judge Lorenzo Garlitos declared us in default and the default judgment
rendered copy of which we received on August 11, 1967. "
On November 16, 1967, the plaintiff's counsel filed an opposition to the amended motion for
reconsideration attaching thereto a counter-affidavit executed before said counsel by Pat. Castulo
Yobia, to wit:
I CASTULO YOBIA, of age, Filipino, married and a resident of Jaro, Leyte, Philippines, after having
been duly sworn to according to law, depose and say:
1. That I am presently a member of the Police Force of the Municipality of Jaro, Leyte; and that
sometime in the month of May, 1967, 1 was ordered by our Chief of Police to serve summons to
which was attached a copy of the complaint upon the persons of Eugenia Ubo and Porferio Regis,
mother and son, respectively, in the outskirts of Bo. Tuba, Jaro, Leyte, which is three kilometers away
from the national road and only accessible on foot as there is no regular trip of passenger vehicle to
that place;
2. That definitely on May 15, 1967, taking the opportunity that there was a cargo truck which passed
by the Municipal Hall going to the aforementioned barrio to get copra, I hurriedly went inside the
Office of the Police Department to get the summons and the office clerk readily gave the same to me
and to which was attached a copy of the complaint;
3. Upon reaching the said barrio I immediately went to the house of Eugenia Ubo, whom I know
personally and was also able to contact at the same place Porferio Regis. At first they refused to
receive the summons and complaint. However, after explaining to them the nature of the summons
and the case against them, both of them signed the summons in my presence reluctantly and I
detached the complaint and handed the same to them although refusing. I further advised them to
look for a lawyer at once to handle their case;
4. That when I returned back to our office in Jaro I was told by the office clerk that there was another
copy of the summons and complaint intended for the other defendant;
5. That in the afternoon of the same day, I incidentally met plaintiff Patricio Bello and his son Juan
Bello in the poblacion of Jaro, Leyte, whom I informed that their complaint was already served on
defendants that morning and requested Patricio Bello to sign the summons, but was instead signed
by the son Juan Bello to show that they were already informed about the service upon defendants
and so that they can inform their lawyer. I then requested the said Patricio Bello to give the other copy
of the complaint to the other defendant thru anybody in the barrio, as they are the ones that use to
frequent the said barrio Tuba of Jaro;
6. That almost a month after, the son of Patricio Bello came to my house handing me the copy of the
complaint I gave to Patricio Bello to be delivered to the other defendant thru anybody in barrio Tuba,
telling me that the same copy of the complaint was not delivered because his father was afflicted with
rheumatism the past weeks.
On January 8, 1968, the Court of First Instance of Leyte issued an order denying defendants' motion
for reconsideration, to wit:
After a consideration of the ground of the Opposition to the Motion for Reconsideration, particularly
the affidavit of Pat. Castulo Yobia, the serving officer of the summons who had, upon the service of
summons, explained to both defendants the nature of the summons and the complaint which should
have warned the defendants of the existence of a case against them, especially because a copy of
the complaint was delivered to both of them at the time of service, the irregularity consisting in the
failure of the serving officer to deliver to each one of them a copy of the complaint is, therefore,
neutralized by such explanation made by the policeman to them. It was, therefore incumbent upon
the defendants to have checked up their case. Their failure to do so does not constitute excusable
negligence, nor could it be said to be one of accident or excusable mistake. For lack of merit of the
Motion for Reconsideration therefore, the same is hereby denied.
A copy of said order was received by the defendants on January 9, 1968.
On January 23, 1968, the defendants, thru counsel, filed a notice of appeal and a motion to appeal as
pauper and submitted to the court for approval their record on appeal. The plaintiff, on the other hand,
filed on January 31, 1968, a motion for execution pending appeal.
On February 10, 1968, the Court of First Instance of Leyte issued an omnibus order approving
defendants' record on appeal and directing that the appeal be given due course; granting defendants'
motion to appeal as pauper; and denying plaintiff's motion for execution pending appeal.
The main thrust of the appeal is that there was no valid and effective service of summons on the
defendants and that, consequently, the Court of First Instance of leyte did not acquire jurisdiction over
their person.
The appellants contend that Pat. Castulo Yobia of the Police Department of Jaro, Leyte, was not a
proper person to serve the summons under Sec. 5, Rule 14 of the Rules of Court since he was not a
sheriff or a court officer of the province where service was made; and neither was he a person who,
for special reasons, was specially authorized to serve the summons by the judge who issued the
same. Furthermore, appellants contend that even assuming that said policeman could be considers
as a proper, person to serve the summond, still there was no valid and effective service since he
brought back the summons with. him together with the copy of 'the complaint.
The appellee, on the other hand, admits that the person who served the summons - Pat. Castulo
Yobia of the Police Department of Jaro, Leyte - is not one of those enumerated by Sec. 5, Rule 14 of
the Rules of Court as the proper person to serve the summons but contends that said provision of the
rules is merely directory and its specification of persons who are to serve summons is not exclusive.
He claims that Pat. Yobia had duly served the summons upon the defendants and had even
explained to them the nature of the summons and advised them to look for a lawyer. He contends
that said policeman did equally if not more effectively what a sheriff or his deputy or a court officer
was expected to have done and, therefore, said service of summons had the same force and effect
as though summons had been served by any of the regular officers mentioned by the Rules.
After consideration of the material antecedents of this case and the pertinent jurisprudence on the
matter, We hold that there was no valid service of summons on the defendants and, consequently,
the Court of First Instance of Leyte did not acquire jurisdiction over their person.
Sec. 5, Rule 14 of the Rules of Court, expressly provides that summons may be served by the sheriff
or other proper court officer of the province or, for special reasons, by a person especially authorized
to serve the summons by the judge of the court which issued the same. Contrary to appellee's
contention, this enumeration is exclusive. Thus, in Sequito vs. Letrondo, G.R. No. L-11588, July
20,1959,105 Phil. 1139, We considered as irregular the service of summons by a police sergeant who
was not a sheriff or a court officer and who was not authorized by the court to deliver the summons.
And in the more recent case of Spouses Olar vs. Cuna, G.R. No. L-47935, May 5, 1979, 90 SCRA
114, We ruled that the postmaster of Bato, Leyte, not being a sheriff or court officer, or a person
authorized by the court to serve the summons cannot validly serve the summons. There, as in the
case at bar where summons was served by one who is not included in the specification of Sec. 5,
Rule 14 of the Rules of Court, this Court had to rule that the court which issued the summons did not
acquire jurisdiction over the person of the defendants.
Furthermore, the appellants point to other irregularities which attended the service of summons by
Pat. Yobia. Thus, it is alleged that said policeman merely tendered the summons to them and did not
give then a copy of the same and of the complaint. While it is true that Pat. Yobia had denied such
allegation in his counter-affidavit which We have heretofore quoted, nevertheless, We find appellants'
version to be more credible. For, the records of the case are replete with indications that the serving
policeman was grossly ignorant of the rules concerning summons. Thus, the return of service shows
that the summons was first served on the plaintiff (back of p. 3, records). Besides, such return of
service was not made under oath in violation of Sec. 20, Rule 14 of the Rules of Court - which
requires that "the proof of service of a summons ... shall be sworn to when made by a person other
than the sheriff or his deputy." And even if We were to give credence to Pat. Yobia's counter-affidavit,
We would still find the service of the summons to be irregular since it is expressly admitted therein
that only one copy of the summons and of the complaint was served on the two defendants.
Since a court acquires jurisdiction over the person of the defendant only by means of a valid service
of summons, trial and judgment without such valid service are, therefore, null and void.
WHEREFORE the trial court's order of default and judgment by default are set aside and said court is
directed to accept defendants-appellants' answer to the complaint and to conduct further proceedings
on the case. Costs against plaintiff-appellee.
SO ORDERED.
Barredo (Chairman), Aquino, Concepcion, Jr., Guerrero, De Castro and Escolin, JJ., concur.
G.R. No. 108538 January 22, 1996
LOURDES A. VALMONTE and ALFREDO D. VALMONTE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION and ROSITA
DIMALANTA, respondents.
DECISION
MENDOZA, J.:
Petitioner Lourdes A. Valmonte is a foreign resident. The question is whether in an action for partition
filed against her and her husband, who is also her attorney, summons intended for her may be served
on her husband, who has a law office in the Philippines. The Regional Trial Court of Manila, Branch
48, said no and refused to declare Lourdes A. Valmonte in default, but the Court of Appeals said yes.
Hence this petition for review on certiorari.
The facts of the case are as follows:
Petitioners Lourdes A. Valmonte and Alfredo D. Valmonte are husband and wife. They are both
residents of 90222 Carkeek Drive South Seattle, Washington, U.S.A. Petitioner Alfredo D. Valmonte,
who is a member of the Philippine bar, however, practices his profession in the Philippines,
commuting for this purpose between his residence in the state of Washington and Manila, where he
holds office at S-304 Gedisco Centre, 1564 A. Mabini Ermita, Manila.
On March 9, 1992, private respondent Rosita Dimalanta, who is the sister of petitioner Lourdes A.
Valmonte, filed a complaint for partition of real property and accounting of rentals against petitioners
Lourdes A. Valmonte and Alfredo D. Valmonte before the Regional Trial Court of Manila, Branch 48.
The subject of the action is a three-door apartment located in Paco, Manila.
In her Complaint, private respondent alleged:
The plaintiff is of legal age, a widow and is at present a resident of 14823 Conway Road,
Chesterfield, Missouri, U.S.A., while the defendants are spouses, of legal age and at present
residents of 90222 Carkeek Drive, South Seattle, Washington, U.S.A., but, for purposes of this
complaint may be served with summons at Gedisco Center, Unit 304, 1564 A. Mabini St., Ermita,
Manila where defendant Alfredo D. Valmonte as defendant Lourdes Arreola Valmonte's spouse holds
office and where he can be found.
Apparently, the foregoing averments were made on the basis of a letter previously sent by petitioner
Lourdes A. Valmonte to private respondent's counsel in which, in regard to the partition of the
property in question, she referred private respondent's counsel to her husband as the party to whom
all communications intended for her should be sent. The letter reads:
July 4, 1991
Dear Atty. Balgos:
This is in response to your letter, dated 20 June 1991, which I received on 3 July 1991. Please
address all communications to my lawyer, Atty. Alfredo D. Valmonte, whose address, telephone and
fax numbers appear below.
c/o Prime Marine
Gedisco Center, Unit 304
1564 A. Mabini, Ermita
Metro Manila
Telephone: 521-1736
Fax: 521-2095
Service of summons was then made upon petitioner Alfredo D. Valmonte, who at the time, was at his
office in Manila. Petitioner Alfredo D. Valmonte accepted the summons, insofar as he was concerned,
but refused to accept the summons for his wife, Lourdes A. Valmonte, on the ground that he was not
authorized to accept the process on her behalf. Accordingly the process server left without leaving a
copy of the summons and complaint for petitioner Lourdes A. Valmonte.
Petitioner Alfredo D. Valmonte thereafter filed his Answer with Counterclaim. Petitioner Lourdes A.
Valmonte, however, did not file her Answer. For this reason private respondent moved to declare her
in default. Petitioner Alfredo D. Valmonte entered a special appearance in behalf of his wife and
opposed the private respondent's motion.
In its Order dated July 3, 1992, the trial court, denied private respondent's motion to declare petitioner
Lourdes A. Valmonte in default. A motion for reconsideration was similarly denied on September 23,
1992. Whereupon, private respondent filed a petition for certiorari, prohibition and mandamus with the
Court of Appeals.
On December 29, 1992, the Court of Appeals rendered a decision granting the petition and declaring
Lourdes A. Valmonte in default. A copy of the appellate court's decision was received by petitioner
Alfredo D. Valmonte on January 15, 1993 at his Manila office and on January 21, 1993 in Seattle,
Washington. Hence, this petition.
The issue at bar is whether in light of the facts set forth above, petitioner Lourdes A. Valmonte was
validly served with summons. In holding that she had been, the Court of Appeals stated: 1
[I]n her above-quoted reply, Mrs. Valmonte clearly and unequivocally directed the aforementioned
counsel of Dimalanta to address all communications (evidently referring to her controversy with her
sister Mrs. Dimalanta over the Paco property, now the subject of the instant case) to her lawyer who
happens also to be her husband. Such directive was made without any qualification just as was her
choice/designation of her husband Atty. Valmonte as her lawyer likewise made without any
qualification or reservation. Any disclaimer therefore on the part of Atty. Valmonte as to his being his
wife's attorney (at least with regard to the dispute vis-a-vis (sic) the Paco property) would appear to
be feeble or trifling, if not incredible.
This view is bolstered by Atty. Valmonte's subsequent alleged special appearance made on behalf of
his wife. Whereas Mrs. Valmonte had manifestly authorized her husband to serve as her lawyer
relative to her dispute with her sister over the Paco property and to receive all communications
regarding the same and subsequently to appear on her behalf by way of a so-called special
appearance, she would nonetheless now insist that the same husband would nonetheless had
absolutely no authority to receive summons on her behalf. In effect, she is asserting that
representation by her lawyer (who is also her husband) as far as the Paco property controversy is
concerned, should only be made by him when such representation would be favorable to her but not
otherwise. It would obviously be inequitable for this Court to allow private respondent Lourdes A.
Valmonte to hold that her husband has the authority to represent her when an advantage is to be
obtained by her and to deny such authority when it would turn out to be her disadvantage. If this be
allowed, Our Rules of Court, instead of being an instrument to promote justice would be made use of
to thwart or frustrate the same.
xxx xxx xxx
Turning to another point, it would not do for Us to overlook the fact that the disputed summons was
served not upon just an ordinary lawyer of private respondent Lourdes A. Valmonte, but upon her
lawyer husband. But that is not all, the same lawyer/husband happens to be also her co-defendant in
the instant case which involves real property which, according to her lawyer/husband/co-defendant,
belongs to the conjugal partnership of the defendants (the spouses Valmonte). It is highly
inconceivable and certainly it would be contrary to human nature for the lawyer/husband/co-
defendant to keep to himself the fact that they (the spouses Valmonte) had been sued with regard to
a property which, he claims to be conjugal. Parenthetically, there is nothing in the records of the case
before Us regarding any manifestation by private respondent Lourdes A. Valmonte about her lack of
knowledge about the case instituted against her and her lawyer/husband/co-defendant by her sister
Rosita. . . .
PREMISES CONSIDERED, the instant petition for certiorari, prohibition and mandamus is given due
course. This Court hereby Resolves to nullify the orders of the court a quo dated July 3, 1992 and
September 23, 1992 and further declares private respondent Lourdes Arreola Valmonte as having
been properly served with summons.
Petitioners assail the aforequoted decision, alleging that the Court of Appeals erred (1) in refusing to
apply the provisions of Rule 14, 17 of the Revised Rules of Court and applying instead Rule 14, 8
when the fact is that petitioner Lourdes A. Valmonte is a nonresident defendant; and (2) because
even if Rule 14, 8 is the applicable provision, there was no valid substituted service as there was no
strict compliance with the requirement by leaving a copy of the summons and complaint with
petitioner Alfredo D. Valmonte. Private respondent, upon the other hand, asserts that petitioners are
invoking a technicality and that strict adherence to the rules would only result in a useless ceremony.
We hold that there was no valid service of process on Lourdes A. Valmonte.
To provide perspective, it will be helpful to determine first the nature of the action filed against
petitioners Lourdes A. Valmonte and Alfredo D. Valmonte by private respondent, whether it is an
action in personam, in rem or quasi in rem. This is because the rules on service of summons
embodied in Rule 14 apply according to whether an action is one or the other of these actions.
In an action in personam, personal service of summons or, if this is not possible and he cannot be
personally served, substituted service, as provided in Rule 14, 7-82 is essential for the acquisition
by the court of jurisdiction over the person of a defendant who does not voluntarily submit himself to
the authority of the court.3 If defendant cannot be served with summons because he is temporarily
abroad, but otherwise he is a Philippine resident, service of summons may, by leave of court, be
made by publication.4 Otherwise stated, a resident defendant in an action in personam, who cannot
be personally served with summons, may be summoned either by means of substituted service in
accordance with Rule 14, 8 or by publication as provided in 17 and 18 of the same Rule. 5
In all of these cases, it should be noted, defendant must be a resident of the Philippines, otherwise an
action in personam cannot be brought because jurisdiction over his person is essential to make a
binding decision.
On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant
is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If
the defendant is a nonresident and he is not found in the country, summons may be served
exterritorially in accordance with Rule 14, 17, which provides:
17. Extraterritorial service. - When the defendant does not reside and is not found in the Philippines
and the action affects the personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant
from any interest therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal service as under section
7; or by publication in a newspaper of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be
less than sixty (60) days after notice, within which the defendant must answer..
In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has
jurisdiction over the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines or
the property litigated or attached.
Service of summons in the manner provided in 17 is not for the purpose of vesting it with jurisdiction
but for complying with the requirements of fair play or due process, so that he will be informed of the
pendency of the action against him and the possibility that property in the Philippines belonging to
him or in which he has an interest may be subjected to a judgment in favor of the plaintiff and he can
thereby take steps to protect his interest if he is so minded. 6
Applying the foregoing rules to the case at bar, private respondent's action, which is for partition and
accounting under Rule 69, is in the nature of an action quasi in rem. Such an action is essentially for
the purpose of affecting the defendant's interest in a specific property and not to render a judgment
against him. As explained in the leading case of Banco Espaol Filipino v. Palanca :7
[An action quasi in rem is] an action which while not strictly speaking an action in rem partakes of that
nature and is substantially such. . . . The action quasi in rem differs from the true action in rem in the
circumstance that in the former an individual is named as defendant and the purpose of the
proceeding is to subject his interest therein to the obligation or lien burdening the property. All
proceedings having for their sole object the sale or other disposition of the property of the defendant,
whether by attachment, foreclosure, or other form of remedy, are in a general way thus designated.
The judgment entered in these proceedings is conclusive only between the parties.
As petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of
summons on her must be in accordance with Rule 14, 17. Such service, to be effective outside the
Philippines, must be made either (1) by personal service; (2) by publication in a newspaper of general
circulation in such places and for such time as the court may order, in which case a copy of the
summons and order of the court should be sent by registered mail to the last known address of the
defendant; or (3) in any other manner which the court may deem sufficient.
Since in the case at bar, the service of summons upon petitioner Lourdes A. Valmonte was not done
by means of any of the first two modes, the question is whether the service on her attorney, petitioner
Alfredo D. Valmonte, can be justified under the third mode, namely, "in any . . . manner the court may
deem sufficient."
We hold it cannot. This mode of service, like the first two, must be made outside the Philippines, such
as through the Philippine Embassy in the foreign country where the defendant resides. 8 Moreover,
there are several reasons why the service of summons on Atty. Alfredo D. Valmonte cannot be
considered a valid service of summons on petitioner Lourdes A. Valmonte. In the first place, service
of summons on petitioner Alfredo D. Valmonte was not made upon the order of the court as required
by Rule 14, 17 and certainly was not a mode deemed sufficient by the court which in fact refused to
consider the service to be valid and on that basis declare petitioner Lourdes A. Valmonte in default for
her failure to file an answer.
In the second place, service in the attempted manner on petitioner was not made upon prior leave of
the trial court as required also in Rule 14, 17. As provided in 19, such leave must be applied for by
motion in writing, supported by affidavit of the plaintiff or some person on his behalf and setting forth
the grounds for the application.
Finally, and most importantly, because there was no order granting such leave, petitioner Lourdes A.
Valmonte was not given ample time to file her Answer which, according to the rules, shall be not less
than sixty (60) days after notice. It must be noted that the period to file an Answer in an action against
a resident defendant differs from the period given in an action filed against a nonresident defendant
who is not found in the Philippines. In the former, the period is fifteen (15) days from service of
summons, while in the latter, it is at least sixty (60) days from notice.
Strict compliance with these requirements alone can assure observance of due process. That is why
in one case,9 although the Court considered publication in the Philippines of the summons (against
the contention that it should be made in the foreign state where defendant was residing) sufficient,
nonetheless the service was considered insufficient because no copy of the summons was sent to the
last known correct address in the Philippines..
Private respondent cites the ruling in De Leon v. Hontanosas, 67 SCRA 458,462-463 (1975), in which
it was held that service of summons upon the defendant's husband was binding on her. But the ruling
in that case is justified because summons were served upon defendant's husband in their conjugal
home in Cebu City and the wife was only temporarily absent, having gone to Dumaguete City for a
vacation. The action was for collection of a sum of money. In accordance with Rule 14, 8,
substituted service could be made on any person of sufficient discretion in the dwelling place of the
defendant, and certainly defendant's husband, who was there, was competent to receive the
summons on her behalf. In any event, it appears that defendant in that case submitted to the
jurisdiction of the court by instructing her husband to move for the dissolution of the writ of attachment
issued in that case.
On the other hand, in the case of Gemperle v. Schenker, 10 it was held that service on the wife of a
nonresident defendant was found sufficient because the defendant had appointed his wife as his
attorney-in-fact. It was held that although defendant Paul Schenker was a Swiss citizen and resident
of Switzerland, service of summons upon his wife Helen Schenker who was in the Philippines was
sufficient because she was her husband's representative and attorney-in-fact in a civil case, which he
had earlier filed against William Gemperle. In fact Gemperle's action was for damages arising from
allegedly derogatory statements contained in the complaint filed in the first case. As this Court said,
"[i]n other words, Mrs. Schenker had authority to sue, and had actually sued, on behalf of her
husband, so that she was, also, empowered to represent him in suits filed against him, particularly in
a case, like the one at bar, which is a consequence of the action brought by her on his
behalf" 11 Indeed, if instead of filing an independent action Gemperle filed a counterclaim in the action
brought by Mr. Schenker against him, there would have been no doubt that the trial court could have
acquired jurisdiction over Mr. Schenker through his agent and attorney-in-fact, Mrs. Schenker.
In contrast, in the case at bar, petitioner Lourdes A. Valmonte did not appoint her husband as her
attorney-in-fact. Although she wrote private res- pondent's attorney that "all communications"
intended for her should be addressed to her husband who is also her lawyer at the latter's address in
Manila, no power of attorney to receive summons for her can be inferred therefrom. In fact the letter
was written seven months before the filing of this case below, and it appears that it was written in
connection with the negotiations between her and her sister, respondent Rosita Dimalanta,
concerning the partition of the property in question. As is usual in negotiations of this kind, the
exchange of correspondence was carried on by counsel for the parties. But the authority given to
petitioner's husband in these negotiations certainly cannot be construed as also including an authority
to represent her in any litigation.
For the foregoing reasons, we hold that there was no valid service on petitioner Lourdes A. Valmonte
in this case.
WHEREFORE, the decision appealed from is REVERSED and the orders dated July 3, 1992 and
September 23, 1992 of the Regional Trial Court of Manila, Branch 48 are REINSTATED.
SO ORDERED.
Regalado, Romero and Puno, JJ., concur.
[G.R. No. L-32170. March 31, 1971.]

CITIZENS SURETY & INSURANCE COMPANY, INC., Petitioner, v. HON. JUDGE A. MELENCIO-
HERRERA, SANTIAGO DACANAY, and JOSEFINA DACANAY, Respondents.

Dayos, Tesoro & Gloria, Jr. for Petitioner.

Respondent Judge for and in his own behalf.

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; ACTION IN PERSONAM; PERSONAL SERVICE OF

SUMMONS REQUIRED. We agree with respondent Judge that the action of plaintiff petitioner,
being in personam, the Court could not validly acquire jurisdiction on a non-appearing defendant,
absent a personal service of summons within the forum. We have explicitly so ruled in Pantaleon v.
Asuncion, 105 Phil. 765, pointing out without such personal service, any judgment on a non-
appearing defendant would be violative of due process. In the aforecited case this Court, through
Justice Roberto Concepcion, now Chief Justice, ruled as follows: . . . "It is a well-settled principle of
Constitutional Law that, in an action strictly in personam, like the one at bar, personal service of
summons, within the forum, is essential to the acquisition of jurisdiction over the person of the
defendant, who does not voluntary submit himself to the authority of the court. In other words,
summons by publication cannot consistently with the due process clause in the Bill of Rights
confer upon the court jurisdiction over said defendants.Due process of law requires personal service
to support a personal judgment, and, when the proceeding is strictly in personam brought to
determine the personal rights and obligations of the parties, personal service within the state or a
voluntary appearance in the case is essential to the acquisition of jurisdiction so as to constitute
compliance with the constitutional requirement of due process. . . .Although a state legislature has
more control over the form of service on its own residents than nonresidents, it has been held that in
actions in personam . . . service by publication on resident defendants who are personally within the
state and can be found therein is not "due process of law," and statute allowing it is unconstitutional.
(16A C.J.S., pp. 786, 789; Emphasis our)"

2. CIVIL LAW; OBLIGATIONS AND CONTRACTS; CREDITORS; REMEDY AGAINST

ABSCONDING DEBTORS. The proper recourse for a creditor in the same situation as petitioner is
to locate properties, real or personal, of the resident defendant debtor with unknown address and
cause them to be attached under Rule 57, Sec. l(f), in which case, the enactment converts the action
into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be
deemed valid and effective But because debtors who abscond and conceal themselves are also quite
adept at concealing their properties, the dismissal of the case below by respondent Judge should be
set aside and the case held pending in the courts archives, until petitioner as plaintiff succeed in
determining the whereabouts of the defendants person or properties and causes valid summons to
be served personally or by publication as the case may be. In this manner, the tolling of the period of
prescription for as long as the debtor remains in hiding would properly be a matter of court record,
and he can not emerge after a sufficient lapse of time from the dismissal of the case to profit from his
own misdeed and claim prescription of his just debt.

DECISION

REYES, J.B.L., J.:

Petitioner Citizens Surety & Insurance Company, Inc. seeks review of an order of respondent Judge
in Civil Case No. 77134 of the Court of First Instance of Manila, Branch XVII, entitled "Citizens Surety
& Insurance Co., Inc. v. Santiago Dacanay and Josefina Dacanay," dismissing the complaint for lack
of proper service of summons upon defendants.

The record is to the effect that petitioner had filed its complaint in the Court below, alleging that at
request of defendant Santiago Dacanay, the plaintiff Surety Company had issued its Surety Bonds
Nos. 4942 and 4944, the first, in favor of Gregorio Fajardo to guarantee payment of a P5,000-
promissory note executed by said Dacanay, and the second, in favor of Manufacturers Bank & Trust
Co., to guarantee payment of another promissory note in like amount; that in consideration of said
bonds, Santiago and Josefina Dacanay executed Indemnity Agreements, binding themselves jointly
and severally to indemnify plaintiff for any losses, costs and expenses which it might sustain in
connection with the issuance of the bonds aforesaid, with interest at 12% per annum; that as
additional security, the Dacanays mortgaged to plaintiff a parcel of land in Baguio City, covered by
Certificate of Title No. T-8116, the mortgage having been duly recorded; that the promissory notes
were not paid .and as a result, plaintiff Surety was compelled to pay P5,000.00 to Gregorio Fajardo
and P4,081.69 to the Manufacturers Bank; that the Dacanays failed to reimburse the Surety for such
payments, whereupon the Surety caused the extrajudicial foreclosure of the mortgage to pay its claim
of P12,941.69 representing its payments, interest and stipulated liquidated damages: that at the
foreclosure sale, the land mortgaged was sold to plaintiff, as highest bidder, for the sum of P2,000.00
leaving an unsatisfied balance of P10,491.69, that plaintiff sought to recover from defendants
Dacanay, plus 10% thereof as attorneys fees, and the costs.

At petitioners request, respondent Judge caused summons to be made by publication in the

newspaper Philippines Herald. But despite the publication and deposit of a prepaid copy of the
complaint at the Manila post office, defendants did not appear within the period of 60 days from last
publication, as required by the summons.

Plaintiff then asked that defendants be declared in default; but :instead, the Judge, by order of May
16, 1970, asked it to show cause why the action should not be dismissed, the suit being in personam
and defendants not having appeared. Then, on May 29, 1970, respondent Judge dismissed the case,
despite plaintiff Suretys argument that the summons by publication was sufficient and valid under
section 16 of Rule 14 of the Revised Rules of Court.

We agree with respondent Judge that the action of plaintiff petitioner, being in personam, the Court
could not validly acquire jurisdiction on a non-appearing defendant, absent a personal service of
summons within the forum. We have explicitly so ruled in Pantaleon v. Asuncin, 105 Phil. 765,
pointing out without such personal service, any judgment on a non-appearing defendant would be
violative of due process. In the aforecited case this Court, through Justice Roberto Concepcin, now
Chief Justice, ruled as follows:jgc:chanrobles.com.ph

"Apart from the foregoing, it is well-settled principle of Constitutional Law that, in an action strictly in
personam, like the one at bar, personal service of summons, within the forum. is essential to the
acquisition of jurisdiction over the person of the defendant, who does not voluntarily submit himself to
the authority of the court. In other words, summons by publication cannot consistently with the due
process clause in the Bill of Rights confer upon the court jurisdiction over said defendants.

Due process of law requires personal service to support a personal judgment, and. when the
proceeding is strictly in personam brought to determine the personal rights and obligations of the
parties, personal service within the state or a voluntary appearance in the case is essential to the
acquisition of jurisdiction so as to constitute compliance with the constitutional requirement of due
process. . . .

Although a state legislature has more control over the form of service on its own residents than
nonresidents, it has been held that in actions in personam . . . service by publication on resident
defendants, who are personally within the state and can be found therein is not "due process of law,"
and a statute allowing it is unconstitutional. (16A C.J.S., pp. 786, 789; Emphasis ours.)"

The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or
personal, of the resident defendant debtor with unknown address and cause them to be attached
under Rule 57, section 1(f), in which case, the attachment converts the action into a proceeding in
rem or quasi in rem and the summons by publication may then accordingly be deemed valid and
effective.

But because debtors who abscond and conceal themselves are also quite adept at concealing their
properties, the dismissal of the case below by respondent Judge should be set aside and the case
held pending in the courts archives, until petitioner as plaintiff succeeds in determining the
whereabouts of the defendants person or properties and causes valid summons to be served
personally or by publication as the case may be. In this manner, the tolling of the period of
prescription for as long as the debtor remains in hiding would properly be a matter of court records
and he can not emerge after a sufficient lapse of time from the dismissal of the case to profit from his
own misdeed and claim prescription of his just debt.

WHEREFORE, the order of dismissal of the case issued by the Court below is hereby set aside, and
in the interest of justice, the proceedings are ordered suspended, to be held pending until the plaintiff
petitioner succeeds in ascertaining the whereabouts of the defendants and/or locating properties of
the same, to enable proper summons to be issued conformably to this Opinion. No costs.

Concepcion, C.J., Makalintal, Zaldivar, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ.,
concur.

Dizon and Castro, JJ., reserve their votes.

G.R. No. L-58340 July 16, 1991
KAWASAKI PORT SERVICE CORPORATION, NAIKAI SHIPPING CO. LTD., NAIKAI TUG BOAT
SERVICE CO., THE PORT SERVICE CORPORATION, LICENSED LAND SEA PILOTS
ASSOCIATION, HAYAKOMA UNYU K.K., TOKYO KISEN COMPANY, LTD., OMORI KAISOTEN,
LTD., TOHOKU UNYU CO., LTD. AND SEITETSU UNYU CO., LTD., petitioners,
vs.
THE HON. AUGUSTO M. AMORES, Judge of Br. XXIV, Court of First Instance of Manila, and
C.F. SHARP & CO., INC., respondents.
Quasha, Asperilla, Ancheta, Pea & Nolasco for petitioners.
Chuidian Law Office for private respondent.

BIDIN, J.:p
This is a petition for certiorari seeking to set aside the orders of the then Court of First Instance of
Manila, * Branch XXIV in Civil Case No. 132077: (a) dated July 13, 1981 denying the special
appearances of petitioners as defendants in said case to question the court's jurisdiction over the
persons of the defendants and (b) dated September 22, 1981, denying the motion for reconsideration
of said order.
The antecedents of this case are as follows:
On May 7, 1980, the private respondent C.F. Sharp & Co., Inc. filed a complaint for injunction and/or
declaratory relief in the then Court of First Instance of Manila against seventy-nine (79) Japanese
corporations as defendants, among which are the petitioners herein. Said complaint was docketed as
Civil Case No. 132077. The complaint alleges, among others, that the plaintiff is a corporation
organized and existing under the laws of the Philippines; that there is another corporation organized
under the law of Japan with the corporate name C.F. Sharp Kabushiki Kaisha; that the plaintiff and
C.F. Sharp Kabushiki Kaisha are in all respects separate and distinct from each other; that C.F.
Sharp Kabushiki Kaisha appears to have incurred obligations to several creditors amongst which are
defendants, also foreign corporations organized and existing under the laws of Japan; that due to
financial difficulties, C.F. Sharp Kabushiki Kaisha failed and/or refused to pay its creditors; and that in
view of the failure and/or refusal of said C.F. Sharp Kabushiki Kaisha to pay its alleged obligations to
defendants, the latter have been demanding or have been attempting to demand from C.F. Sharp &
Co., Inc., the payment of the alleged obligations to them of C.F. Sharp Kabushiki Kaisha,
notwithstanding that C.F. Sharp & Co., Inc. is a corporation separate and distinct from that of C.F.
Sharp Kabushiki Kaisha and that the former had no participation whatsoever or liability in connection
with the transactions between the latter and the defendants.
As alleged in the complaint, the private respondent prayed for injunctive relief against the petitioners'
demand from the private respondent for the payment of C.F. Sharp Kabushiki Kaisha's liabilities to
the petitioners.
As an alternative to injunction, the private respondent prayed that a judicial declaration be made that,
as a separate and independent corporation, it is not liable for the obligations and liabilities of C.F.
Sharp Kabushiki Kaisha.
Since the defendants are non-residents, without business addresses in the Philippines but in Japan,
the private respondent prayed for leave of court to effect extraterritorial service of summons.
On June 11, 1980, the respondent judge issued an order authorizing the private respondent to effect
extraterritorial service of summons on defendants therein.
Subsequently, private respondent filed an urgent ex-parte motion dated June 23, 1980 for
Extraterritorial Service of Summons Upon Defendants by registered mail with return cards pursuant to
Section 17 of Rule 14 of the Rules of Court.
Acting on said motion, the respondent judge issued an order dated June 30, 1980 granting the motion
and authorizing extraterritorial service of summons upon defendants to be effected by registered mail
with return cards.
On March 11, 1981, five of the petitioners, Kawasaki Port Service Corporation, Naikai Shipping Co.,
Ltd., Naikai Tug Boat Service Co., Ltd., The Port Service Corporation and Licensed Land Sea Pilots
Association filed their "Special Appearance to Question Jurisdiction of This Honorable Court Over
Persons of Defendants" contending that the lower court does not and cannot acquire jurisdiction over
the persons of defendants on the grounds that private respondent's action does not refer to its
personal status; that the action does not have for subject matter property contemplated in Section 17
of Rule 14 of the Rules of Court, that the action does not pray that defendants be excluded from any
interest or property in the Philippines; that no property of the defendants has been attached; that the
action is in personam; and that the action does not fall within any of the four cases mentioned in
Section 17, Rule 14 of the Rules of Court.
On March 17, 1981, another three of herein petitioners, Hayakoma Unyu K.K., Tokyo Kisen
Company, Ltd. and Omori Kaisoten, Ltd. also filed their special appearance adopting the same
arguments as that of the first five.
On April 28, 1981, the two other petitioners, Tohoku Unyu Co., Ltd. and Seitetsu Unyu Co., Ltd., filed
their "Special Appearance to Question the Jurisdiction of the Honorable Court" over their persons
adopting in toto as theirs the "Special Appearance" dated March 11, 1981 of Kawasaki Port Service.
On July 13, 1981, the respondent Court issued its order denying said special appearances. The
motion for reconsideration of said order filed by the petitioners was also denied on September 22,
1981.
Hence, the present petition.
After the required pleadings were filed, the First Division of this Court, in the resolution of April 14,
1982, gave due course to the petition and required both parties to submit simultaneous memoranda
within thirty (30) days from notice. Both parties complied by submitting the required memoranda.
The main issue in this case is whether or not private respondent's complaint for injunction and/or
declaratory relief is within the purview of the provisions of Section 17, Rule 14 of the Rules of Court.
The petitioners contend that the respondent judge acted contrary to the provisions of Section 17 of
Rule 14 for the following reasons: (1) private respondent's prayer for injunction, as a consequence of
its alleged non-liability to the petitioners for debts of C.F. Sharp Kabushiki Kaisha of Japan,
conclusively establishes that private respondent's cause of action does not affect its status; (2) the
respondent court cannot take jurisdiction of actions against the petitioners as they are non-residents
and own no property within the state; (3) the petitioners have not as yet claimed a lien or interest in
the property within the Philippines at the time the action was filed which is a requirement under
Section 17 of Rule 14; (4) extra-territorial service on a non-resident defendant is authorized, among
others, when the subject of the action is property within the Philippines in which the relief demanded
consists in excluding defendant from any interest therein; and (5) inasmuch as the reliefs prayed for
by the private respondent in the complaint are in personam, service by registered mail cannot be
availed of because Section 17 of Rule 14 authorized this mode of service only in actions in
rem or quasi in rem.
For its part, the private respondent countered that (1) the action refers to its status because the basic
issue presented to the lower court for determination is its status as a corporation which has a
personality that is separate, distinct and independent from the personality of another corporation, i.e.,
C.F. Sharp Kabushiki Kaisha of Japan; (2) under Section 17 of Rule 14, the subject matter or property
involved in the action does not have to belong to the defendants. The provisions of said section
contemplate of a situation where the property belongs to the plaintiff but the defendant has a claim
over said property, whether that claim be actual or contingent; (3) the prayer of the plaintiff that the
defendants be excluded from any interest in the properties of the plaintiff within the Philippines has
the effect of excluding the defendants from the properties of the plaintiff in the Philippines for the
purpose of answering for the debts of C.F. Sharp Kabushiki Kaisha of Japan to the defendants in
accordance with Section 17 of Rule 14; and (4) the action before the lower court is an action quasi in
rem as the remedies raised in the complaint affect the personal status of the plaintiff as a separate,
distinct and independent corporation and relates to the properties of the plaintiff in the Philippines
over which the petitioners have or claim an interest, actual or contingent.
The petition is impressed with merit.
Section 17, Rule 14 of the Rules of Court provides:
Section 17. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual
or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant
from any interest therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal service as under section
7; or by publication in a newspaper of general circulation in such places and for such times as the
court may order, in which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be
less than sixty (60) days after notice, within which the defendant must answer.
This Court had ruled that extraterritorial service of summons is proper only in four (4) instances,
namely: "(1) when the action affects the personal status of the plaintiffs: (2) when the action relates
to, or the subject of which is, property within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent; (3) when the relief demanded in such action consists, wholly or in
part, in excluding the defendant from any interest in property located in the Philippines; and (4) when
the defendant non-resident's property has been attached within the Philippines." (De Midgely v.
Ferandos, 64 SCRA 23 [1975]; The Dial Corporation v. Soriano, 161 SCRA 737 [1988]).
In the case at bar, private respondent has two (2) alternative principal causes of action, to wit: either
for declaratory relief or for injunction. Allegedly, in both cases, the status of the plaintiff is not only
affected but is the main issue at hand.
As defined, "Status means a legal personal relationship, not temporary in nature nor terminable at the
mere will of the parties, with which third persons and the state are concerned" (Holzer v. Deutsche
Reichsbahn Gesellschaft, 290 NYS 181; cited in 40 Words and Phrases, 129, Permanent Edition).
It is easy to see in the instant case, that what is sought is a declaration not only that private
respondent is a corporation for there is no dispute on that matter but also that it is separate and
distinct from C.F. Sharp Kabushiki Kaisha and therefore, not liable for the latter's indebtedness. It is
evident that monetary obligations does not, in any way, refer to status, lights and obligations.
Obligations are more or less temporary, but status is relatively permanent. But more importantly, as
cited in the case of (Dy Poco v. Commissioner of Immigration, et al., 16 SCRA 618 [1966]), the
prevailing rule is that "where a declaratory judgment as to a disputed fact would be determinative of
issues rather than a construction of definite stated rights, status and other relations, commonly
expressed in written instrument, the case is not one for declaratory judgment." Thus, considering the
nature of a proceeding for declaratory judgment, wherein relief may be sought only to declare rights
and not to determine or try issues, there is more valid reason to adhere to the principle that a
declaratory relief proceeding is unavailable where judgment would have to be made, only after a
judicial investigation of disputed issues (ibid). In fact, private respondent itself perceives that
petitioners may even seek to pierce the veil of corporate identity (Rollo, p. 63).
Private respondent alleges that most if not all, of the petitioners have merely demanded or have
attempted to demand from the former the payment of the obligations of C.F. Sharp K.K., (Rollo, p.
63). Otherwise stated, there is no action relating to or the subject of which are the properties of the
defendants in the Philippines for it is beyond dispute that they have none in this jurisdiction nor can it
be said that they have claimed any lien or interest, actual or contingent over any property herein, for
as above stated, they merely demanded or attempted to demand from private respondent payment of
the monetary obligations of C.F. Sharp K.K., No action in court has as yet ensued. Verily, the fact that
C.F. Sharp Philippines is an entity separate and distinct from C.F. Sharp K.K., is a matter of defense
that can be raised by the former at the proper time.
Finally, the alternative relief sought is injunction, that is to enjoin petitioners from demanding from
private respondent the payment of the obligations of C.F. Sharp K.K., It was not prayed that
petitioners be excluded from any property located in the Philippines, nor was it alleged, much less
shown, that the properties of the defendants, if any, have been attached.
Hence, as ruled by this Court, where the complaint does not involve the personal status of plaintiff,
nor any property in the Philippines in which defendants have or claim an interest, or which the plaintiff
has attached, but purely an action for injunction, it is a personal action as well as an action in
personam, not an action in rem or quasi in rem. As a personal action, personal or substituted service
of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the
court. In an action for injunction, extra-territorial service of summons and complaint upon the non-
resident defendants cannot subject them to the processes of the regional trial courts which are
powerless to reach them outside the region over which they exercise their authority. Extra-territorial
service of summons will not confer on the court jurisdiction or Power to compel them to obey its
orders (Dial Corporation v. Soriano, 161 SCRA 738 [1988] citing Section 3-a Interim Rules of Court,
Section 21, subpar. 1, BP Blg. 129).
Considering that extra-territorial service of summons on the petitioners was improper, the same was
null and void.
WHEREFORE, the petition is Granted and the questioned orders dated July 13, 1981 and September
22, 1981 of the respondent Judge, are Reversed and Set Aside.
SO ORDERED.
Gutierrez, Jr., Feliciano and Davide, Jr., JJ., concur.
Fernan, C.J.,, took no part.